7

NEWS FOR
THIS WEEK

December 31, 2015
Thursday

COMMENTARY: A few thoughts as the year ends and some suggesions for next year.

DECISIONS: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.

Week
#367

Issue
#1

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2012 COURT DECISIONS

Concerning
The NYS Workers Compensation Board

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— — DECEMBER 2012 — — |

 

Fowler v Crouse Community Ctr
December 27, 2012 NYS Appellate Division, Third Department
§ 23:Interlocutory Appeal

DISMISSED an appeal of the Board's decision as the Board's ruling was unresolved pending a determination on permanency. Although the claimant had suffered work-related injuries with two different employers it was not yet determined by the Board if only one or both with some degree of apportionment were responsible. The Board then placed liability with Crouse’s carrier, pending a determination on the issue of apportionment. The carrier appealed and the Court dismissed the appeal on the grounds that "Board decisions which neither decide all substantive issues nor involve a threshold legal issue are not appealable. . . . Notably, our dismissal of this interlocutory appeal ‘will further the policy goal of avoiding piecemeal review of issues in workers' compensation cases, without depriving the parties of the ability to appeal the apportionment percentages once they are finally determined.’" Prevailing party represented by: Charles L. Browning of counsel to State Insurance Fund, respondent. [2C210-7790]

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Liebman v NYC Dept of Envtl Prot
December 27, 2012 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays

AFFIRMED  the Board's ruling that the carrier must reimburse an out-of-network provider at the NYS rate, despite having given claimant ample notice to use its network provider. The Court noted that it had issued a similar decision in Rivera v North Central Bronx Hospital on December 13, 2012. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [2C210-7789]

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Silverman v NYS WCB
December 20, 2012, 2012 NYS Appellate Division, Third Department
§24-a Licensed Rep

AFFIRMED , in a split decision, the Board’s declining to renew petitioner's §24-a license to represent workers' compensation claimants. Although Donna Silverman (hereinafter petitioner) had a license to practice before the Workers Comp Board as a nonattorney representative per WCL §24-a since 1983, at a 2011 oral interview for her renewal, the Board felt that the petitioner (1) lacked competent knowledge of the WCL and related regulations as well as (2) for her failure to properly disclose her partnership with her husband, petitioner Irwin Silverman. The majority of the Court agreed with the Board panel that conducted the interview that petitioner’s response to questions about a major case (American Axle) indicted a lack of understanding of the basic issues resolved by that case, cited in at least three adverse determinations issued to petitioner's clients prior to her oral review. As a result the Court could not say, “given the potential impact to petitioner's clients of the American Axle case, that her lack of familiarity therewith is inconsequential.” As to the second issue, the Court gave ”deference” to the Board’s determination that “petitioner failed to disclose a partnership relationship with Silverman as required by 12 NYCRR 302-2.3. . . . [C]ontrary to petitioner's contention, the Board is not limited to the definition of partnership contained in the Partnership Law. In determining whether a partnership exists, no one factor is controlling, and the Board could properly consider the overall relationship between petitioner and Silverman.” “[W]e are therefore satisfied that the Board's decision to deny renewal of petitioner's license had a rational basis and was not arbitrary and capricious.

Justice Malone dissented, writing that “the questions were, without exception, poorly-worded and nonspecific, to the point of vagueness. Nevertheless, petitioner did accurately describe the measures that a claimant must take ... Although her responses were not what the Board apparently sought, the unartfully-phrased, ambiguous questions posed to her did not elicit more detailed responses, and clearly did not establish that she lacked knowledge of either the WCL generally, or American Axle specifically. In fact, the questioning Commissioner's response to petitioner's correct answer was itself incorrect.” Next Malone explained in further detail why he thought the Board’s position on the ‘undisclosed’ partnership was both arbitrary and capricious. Prevailing party represented by: Paul Groenwegen of counsel to the NYS Attorney General, for WCB, respondent. [2C209-77885]

The Insider The old adage “It is better to remain silent and appear stupid than the speak up and prove it” should be a prime directive for a number of current commissioners while at interviews or hearings, as it was for some of my colleagues in the past. And while it is nice to know that the Board has actually availed itself of its right, and responsibility, to not renew a §24-a license, something it almost always refused to do when I was at the Board, one can only hope this decision was done with the claimants in mind and not some personal invective of a Board member, possibly one who did not even sit on the panel. Unfortunately for every unqualified holder of a §24-a license there are probably an equal number of attorneys who appear regularly before the Board whose right to practice WCL should be revoked. Unqualified licensed reps and attorneys cast a shadow on the hundreds of practitioners who do an excellent job.

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Sciame v Airborne Express
December 20, 2012 NYS Appellate Division, Third Department
Schedule Loss of Use issues

AFFIRMED the Board’s decision that claimant was not entitled to a schedule loss of use award as he had previously been classified as with a permanent partial disability and award the maximum payment of $400 a week. Although all parties agreed that claimant had suffered an SLU of his left arm, the carrier argued that “concurrent payments for schedule and nonschedule awards may not exceed that maximum rate where the nonschedule award arises from a permanent disability.” The Court then wrote, “Contrary to claimant's argument, there is nothing in the 2009 amendments to WCL §§ 15 and 25 that evinces an intent on the Legislature's part to overturn our longstanding precedent capping the maximum amount of awards paid concurrently." Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Airborne Express, Inc. and another, respondents. [2CB209-7787]

UPDATE February 14, 2013: Sciame v Airborne Express (12/20/2012, App Div, 3d Dept, 101 AD3d 1419): Motion for leave to appeal denied by the Court of Appeals on February 14, 2013.

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Giudi v New Paltz Fire Dept 3rd
December 13, 2012 NYS Appellate Division, Third Department
VFBL

AFFIRMED  the Board’s decision that the claimant’s condition had not improved since his classification. After the claimant, a chef and military police officer, suffered a head injury in the course of his duties as a volunteer firefighter, the Board established a permanent partial disability and that he had been deprived of more than 75% of his earning capacity, awarding benefits pursuant to VFBL §10(1). Several years later the employer unsuccessfully contented that claimant's condition had changed (see VFBL §13). The Court agreed with the Board's finding that claimant remains unable "to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute." The Court also agreed that the Board’s reliance on medical evidence that claimant’s cognitive impairments continued to prevent him from working as a chef or military police officer provided ample justification for its finding that claimant continues to suffer from a disability that deprived him of more than 75% of his earning capacity. Prevailing party represented by: Marjorie S. Leff of counsel to Attorney General for Workers' Compensation Board, respondent. [2C208-7786]

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Laib v State Ins Fund
December 13, 2012 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s decision that claimant sustained a compensable injury. Claimant alleged that she injured her right shoulder and elbow after repeatedly closing and pulling open the heavy front door of a building in which she worked during her five years of employment. After she began having problems with her right shoulder and elbow, she repeatedly complained to the security guards in the lobby about the heavy door. Claimant requested permission from her supervisor to use the handicapped-accessible door and gave him a note from her doctor supporting that request. In 2009 claimants sought surgery and a subsequent C-4 indicated the alleged causal relationship. A Law Judge then determined that claimant sustained an accidental injury from her employment as a result of repetitive trauma and awarded benefits. The Court “reject[ed] the employer's contention that the record lacks proof of an unusual or extraordinary condition or event that could cause claimant's accidental injury. In our view, being forced to negotiate heavy metal and glass doors connected to a tight spring in order to gain access to or leave your office building is ‘not the “'natural[ ] and unavoidabl[e]” result of employment’ as an office worker. Contrary to the employer's argument, we do not agree that the testimony of claimant regarding her struggles with the door was contradicted, as a matter of law, by the testimony of claimant's supervisor and the employer's investigator.Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. [2C208-7785]

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Mangroo v Paramount Brands
December 13, 2012 NYS Appellate Division, Third Department
Untimely Submissions/Defenses

AFFIRMED the Board’s ruling that (1) State Insurance Fund (SIF) must reimburse One Beacon Insurance Company certain amounts, and (2) SIF’s request for reconsideration and/or full Board review (FBR) was denied. Two of the three of claimant’s injures (all for same employer) were covered by SIF, the third covered by Beacon. After finding a permanent partial disability, a Law Judge apportioned liability equally as to each of the three claims ($16,910) and directed that the respective carriers reimburse each other according to their proportionate shares of the award. SIF and One Beacon subsequently claimed that they each paid the entire sum due to claimant and, as a result, sought reimbursement from one another as to the asserted overpayment. After several hearing in which both carriers were given the opportunity to establish the amount claimed to be due and owing, a Law Judge directed SIF to reimburse Beacon $33,820 ($16,910 x 2). for its proportionate share of the prior award. SIF’s appeal, with additional documentation relative to the claimed overpayment, was rejected by the Board as untimely and it FBR request subsequently denied. The Court wrote that “Initially, inasmuch as SIF did not brief the denial of its application for reconsideration and/or full Board review, we deem its appeal in this regard to be abandoned.” As to the issue of overpayment, the Court agreed that the Board had offered SIF several opportunities to submit is documentation, ultimately making it decision on the documents timely submitted by Beacon. Prevailing party represented by: Michael H. Ruina of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Eber Brothers Wine & Liquor Corporation and another, respondents. [2C208-7784]

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Rivera v North Cent Bronx Hosp
December 13, 2012 NYS Appellate Division, Third Department
3170...§13-b Medical Bills: Who Pays

AFFIRMED the Board’s ruling that the carrier had to pay claimant’s medical provider even if it was not the one chose by the carrier. The self-insured requested that, per WCL §13-a(7), the claimant go to its preselected medical provider for EMG tests. Instead, claimant went to her own doctor and carrier refused to pay. The carrier argued that the law “(a) permits self-insured employers, among others, to contract with a provider ‘to perform diagnostic tests, x-ray examinations, magnetic resonance imaging, or other radiological examinations or tests of claimants.’ If the requisite notice is given to a claimant (see Workers' Compensation Law §§ 13-a [7] [b]; 110 [2]), the employer is further entitled to "require claimant to obtain or undergo such . . . tests with" the specified provider (Workers' Compensation Law § 13-a [7] [a] [emphasis added]). There is no dispute that an EMG test is encompassed by the terms of Workers' Compensation Law § 13-a (7). Also, none of the statutory exceptions applies, and claimant does not deny that she was given the proper notice requiring her to use the specific provider.” Nonethleless, the Board found that “The statute itself is silent on the question of the appropriate response where a claimant fails to use an employer's specified provider, and nothing in the legislative history suggests that nonpayment is the appropriate remedy.” the Court “also note[d] that the employer did not argue before the Board that there would be any broader or indirect financial impact resulting from its paying the rate set with its specified provider to others, and no proof in the record before us supports that claim.” Hence the Board’s decision is affirmed. Prevailing party represented by: Terri E. Gerstein of counsel to the NYS Attorney General, for WCB, respondent. [2C208-7783]
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Alcott-Avery v Finger Lakes Reg
December 6, 2012 NYS Appellate Division, Third Department
C-250 Timely

AFFIRMED the Board’s ruing that the C-250 was timely filed. The carrier and claimant agreed to a stipulated settlement which included the fact that claimant suffered from a moderate to marked permanent partial disability. The stipulation was signed September 29, 2009 and the Law Judge approved it, incorporating it into a written decision filed on October 5, 2009. On October 2, 2009, four days after signing the stipulation but three days prior to the filing of the agreement by the Board, the carrier filed its C-250 seeking reimbursement from the Special Disability Fund per §15(8)(f). The Board ruled, and the Court affirmed, that “the determination of permanency" did not occur until the agreement was filed by the Board, not when it was signed, thus making the filing of the C-250 timely. Prevailing party represented by: Joseph P. DeCoursey of counsel to Hamberger & Weiss (Rochester) for Finger Lakes Regional Health and another, respondents. [2C207-7782]
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Miller v Joyful Farms
December 6, 2012, 2012 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Gets Paid

AFFIRMED  the Board’s ruling that claimant’s wife should be paid for her services as a health care provider for her husband. His wife has provided needed care for him since his return home and, as such, claimant argued that she should be compensated pursuant to WCL §13(a). The Court determined that “The employer is responsible for claimant's medical care and treatment, including nursing and home care services ‘performed by claimant's spouse’. Substantial evidence in the record supports the Board's finding that claimant's wife in fact provides such services in addition to tasks she previously performed around their home. Indeed, she now devotes significant portions of her time to caring for claimant including, among other things, maneuvering him in and out of bed, assisting him with his personal hygiene, obtaining and administering his medication, and exercising his legs and feet. The Board properly determined that she should be compensated for those services and was free to value them by relying upon the prevailing health cost data provided by claimant, particularly in view of the employer's failure to submit any evidence to call that data into question.” Prevailing party represented by: Genelle J. Bayer of counsel to Lekki, Hill, Duprey & Bhatt (Canton) for John D. Miller, respondent and Christopher Ronk of counsel of counsel to the NYS Attorney General, for WCB, respondent. [2C207-7781]
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Anderson v Town of Oyster Bay
December 5, 2012, 2012 NYS Appellate Division, Second Departmen
tNotice to employer

AFFIRMED the lower court’s ruling that the injured worker (appellant) failed to timely file notice of this injury to the Town of Oyster Bay. Injured while working for a contractor hired by the Town, claimant did timely and successfully file his workers’ compensation claim. The Court determined that “the petitioner failed to establish that the Town of Oyster Bay acquired actual knowledge of the essential facts constituting the claim within 90 days after the subject accident or a reasonable time thereafter.” It then listed a number of conditions that had to be met for there to have been timely notice to the Town and ended its decision noting that the delay of more than eight months in making his claim “prejudiced its ability to investigate the alleged dangerous condition and to interview potential witnesses while their recollections were fresh.” [2C207-7780]

The Insider: Although this is not a WCL §18 notice case, it illustrates the need to timely file a claim and helps distinguish what is/are defined as proper 'notice'.

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|— — NOVEMBER 2012 — — |

Bland v Gellman, et al
November 29, 2012 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New
Medical Billing

September 12, 2013- Court of Appeals: Motion for reargument of motion for leave to appeal by Bland denied.

AFFIRMED the Board’s decisions that (1) denied the pro-se claimant's request to amend claim to include additional causally-related injuries, (2) the Law Judge erred by not allowing the carrier to question claimant about her attachment to the labor market, and (3) the carrier was not responsible for claimant's out-of-state travel expenses. As to the medical issues, the Court, as is its practice, gave “deference to the Board's assessment of a witness's credibility, especially when presented with conflicting medical opinions, we find that substantial evidence exists to support that decision, even though there is record medical evidence that would support a contrary result.” While the carrier did have an obligation to pay for out-of-state treatment in Colorado (at WCB rates), it did not have to provide for travel expenses to Colorado as there were several doctors in Western NY (where claimant lived) who could provide the same diagnostic testing and surgical treatment. As to the issue of the carrier’s opportunity to cross-examine her regarding her attachment to the labor market, the Court determined that the issue was not properly before the Court. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss (Buffalo) for Gellman, Brydges & Schroff and others, respondents, and Jill B. Singer of counsel to Special Fund for Reopened Cases, respondent. [2B206-7779]
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Brzezinski v Gambino
November 21, 2012 NYS Appellate Division, Third Department
Employment: Who

AFFIRMED the Board’s ruling which (1) ruled that claimant was not an employee and (2) denied her request for a Full Board Review (FBR). After being interviewed for the position of live-in housekeeper, claimant left the alleged employers’ home and fell in their yard, receiving several injuries. She claimed that she was an employee at the time of the accident but the alleged employers reported that she was still in the interview process for the position. Specifically, claimant did not yet show proof of a driver’s license, a job requirement, and there was no discussion of a specific salary or the duration of the job. While Gambino gave claimant money from her wallet after driving her home from the hospital, Gambino stated that she did so because she felt badly about claimant's injury. The Court wrote in its decisions that, “Gambino's testimony, which was credited by the Board, provides substantial evidence to support the determination that no employer-employee relationship existed, even though claimant's testimony, if credited, could constitute substantial evidence in support of a compensable injury.” Claimant then sought FBR, contending that her injury was compensable based upon her performing hazardous work during a tryout period but, as this was not raised before the WC Law Judge, the Board was not required to consider it, a decision that was "neither arbitrary or capricious." Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O'Boyle & Weissman (Hauppauge) for Greenhouse Agency Ltd. and another, respondents Amy Levitt of counsel to Fischer Brothers (NYC) for Chubb Group of Insurance Companies, respondent.[2B205-7778]
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Morin v Town of Lake Luzerne
November 21, 2012 NYS Appellate Division, Third Department
Apportionment: Awards, SLU

September 12, 2013 - Court of Appeals: Motion for leave to appeal by Town of Lucerne denied on decision by 3rd Dept which reversed the Board’s ruling that apportionment did not apply to an earlier non-WC injury.

REVERSED the Board’s ruling by ruling that apportionment did not apply to an earlier non-WC injury. Following a 2009 back injury, claimant was awarded compensation. A Law Judge then determined that the award should be apportioned 50% to the 2009 work-related injury and 50% _8b-final-cover-html-see-my-white.jpgto a 2004 non-work-related back injury. The Court noted that, “apportionment is inapplicable as a matter of law when the preexisting condition was not due to a compensable injury and the claimant was fully employed and capable of effectively performing his or her job duties notwithstanding the preexisting condition; apportionment applies ‘only in cases where the prior condition constitutes a disability in a compensation sense.’ " The claimant was out of work for several months after his 2004 injury but underwent a comprehensive preemployment physical examination prior to commencing his employment as a mechanic with the Town of Lake Luzerne in 2005. Claimant was thereafter employed full time and was able to fully perform his job for more than four years before the September 2009 work-related injury. The Town's medical expert opined, and the Board incorrectly agreed, that apportionment was appropriate due to the similarity of the symptoms and pathology of the 2004 and 2009 injuries, but the Court noted that "the dispositive issue is not whether a claimant's preexisting condition was symptomatic but, rather, whether such condition was disabling." As it was not, the Board's decision to apportion claimant's workers' comp award was unsupported and was thus reversed. Prevailing party represented by: Alex C. Dell of counsel to Law Firm of Alex C. Dell (Albany) for appellant. [2B205-7777]
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Anton v West Manor Constr
November 20, 2012 NYS Appellate Division, First Department
§11: Grave Injury

Among the many issued decided by the Supreme Court in the underlying appealed-from decision, that Appellate Court denied West Manor and Bradhurst's claims for common-law indemnification and contribution as against Tiegre, the injured plaintiff's employer, finding that plaintiff did not sustain a grave injury within the meaning of WCL §11. Plaintiff's bill of particulars, deposition testimony, and medical records, and the independent medical examination reports indicate that, while plaintiff may have been unable for a time to work in his chosen profession, his disability was caused by his neck and shoulder injuries, not by "an acquired injury to the brain" the only potentially applicable category of grave injury under WCL §11. The daily headaches and frustrating loss of focus from which plaintiff testified he suffered do not satisfy the acquired brain injury standard. [2B205-7776]
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Cambridge Integrated Servs v Faber
November 20, 2012 NYS Appellate Division, Third Department
§29: 3rd Party/MVA

AFFIRMED the NY County Supreme Court order which denied the motion of defendants Faber and his law office Law for summary judgment, dismissing the complaint. In 2000, defendant Pressley, a New York City resident, was injured in a truck accident in Connecticut during the course of his employment with nonparty Cobra Express, which is located in New Jersey. Fremont, the workers comp carrier for Cobra Express, paid Pressley New Jersey workers' comp, making the last payment to Pressley in 2002. A few days after the accident, Pressley retained nonparty Paul A. Shneyer, Esq., to bring a personal injury lawsuit for injuries he sustained in the accident. When Shneyer failed to timely commence an action, Pressley, represented by Faber, successfully brought a malpractice action against Shneyer, settling the case against Shneyer in December 2008.

In March 2009, plaintiff, the administrator for Fremont, commenced the instant action to enforce a lien against the settlement proceeds. The Faber defendants maintain that under Matter of Shutter v Phillips Display, New Jersey cases holding that workers' comp liens attach to legal malpractice recoveries do not apply in this case because the malpractice recovery did not duplicate the medical payments and lost wages Pressley received under workers' comp. The Appellate Court found this argument unavailing. Pursuant to a June 2010 order from which the Faber defendants did not appeal, New Jersey law applies to the merits of plaintiff's claims and thus New York law regarding double recoveries is inapplicable. Under New Jersey law, a double recovery "occurs when the employee keeps any workers' compensation benefits that have been matched by recovery against the liable third person", rendering irrelevant whether the settlement of the legal malpractice action included medical expenses and lost wages. The Court noted that, even if New York law applied, the settlement did not specify what it was for and therefore, the Court could not conclude that no part of it was for medical expenses and lost wages. Also, defendants' argument that the application of New Jersey law in this case violates New York public policy because Pressley is a New York resident fails because although defendants have shown that New York and New Jersey law differ on this issue, they have not satisfied the stringent test for rejecting New Jersey law as against New York public policy. [2B205-7775]
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Flynn v Managed Care
November 8, 2012 NYS Appellate Division, Third Department
Aggregate Trust Fund

AFFIRMED  the Board’s decision that carrier’s refund from the Aggregate Trust Fund (ATF) should not include a credit for interest charged. Rather than making the directed deposit in 2001 for $225,231 into the ATF, the carrier paid the claimant directly while appealing the deposit to the Board and the Court. After losing that appeal in 2010, the Law Judge ordered the carrier to make the $225K payment less a deduction of $182,000 for direct payment to the claimant, plus interest that would have accrued on the deposit. The net refund was $64,540. The carrier appealed seeking an adjustment for the interest but the Board and Court ruled against the carrier. “The original deposit reflected an actuarially-discounted sum that assumed that the ATF would earn interest on the $225,231.58 deposit from the commutation date forward. Instead, the carrier retained use of those funds for more than eight years . . . To now relieve the carrier of paying interest from the commutation date forward would result in a windfall to the carrier, and would also result in the ATF having insufficient funds available to cover the projected life expectancy of the remaining beneficiary.Prevailing party represented by: Nancy Wood of counsel to NYSIF for for Aggregate Trust Fund, respondent.[2B203-7774]

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Griffin v Town of Dewitt
November 8, 2012 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s decision that claimant had involuntarily retired. After claimant received workers comp for a back injury, he required back surgery for his condition in 2009 and missed several months of work, but returned to work without restrictions. Nevertheless feeling that he could no longer perform his duties, claimant retired when he became eligible for Social Security retirement benefits in 2010 and sought a continuing award of lost time benefits. After the carrier contended his withdrawal was voluntary, the Law Judge agreed despite finding that claimant's injuries constituted a permanent partial disability. A Board panel reversed, finding that claimant had involuntarily retired, awarding continuing benefits. The Court agreed finding, “Claimant testified that he had no intention of retiring for several more years, but found himself physically unable to perform the work demanded of him despite informal accommodations made by his supervisor and coworkers. While his doctors did not specifically advise him to retire, they were unenthusiastic about his returning to work after surgery and supported his eventual decision to retire. Indeed, his chiropractor ordered him to stop working before his actual retirement date, and his orthopedic surgeon stated in no uncertain terms that he would not ‘return to work activity’ due to his disability.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent.of counsel to the NYS Attorney General, for WCB, respondent.[2B203-7773]

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Martinez v Lefrak City
November 8, 2012 NYS Appellate Division, Third Department
§114-a: Fraud

AFFIRMED  the Board’s decision that claimant committed fraud per §114-a, stopping further benefits. Claimant, working as a porter as well as pursuing a career as a professional boxer, took part in a July 30, 2004 featherweight boxing match at the Mohegan Sun Casino. Casino records and hospital reports show that, during the match, claimant sustained an injury to his left bicep, diagnosed on August 4, 2004 as a complete tear of the left bicep after which he as told that surgery would be necessary to repair it. Nonetheless, claimant returned to his duties as a porter and, on August 18, 2004, reported that he injured his left arm while moving garbage bags, was taken to the hospital and, on August 20, 2004, underwent left bicep surgery. Citing the August 18 injury, claimant filed for workers' comp, getting a 30% SLU. The carrier raised the issue of whether claimant filed a false claim for benefits and/or misrepresented the extent of his injury by failing to disclose the prior July 30 injury to any of the medical providers who examined him following the claimed August 18 injury. The Board concluded that, while the record sufficiently showed that he sustained a work-related accident on August 18, the proof also supported a finding of a §114a violation "based on the claimant's denial of a prior left arm injury to the multiple medical providers and consultants.", thus disqualifying him from comp awards but still granted medical benefits. Consequently, it was determined that, while claimant would still be entitled to medical benefits, he was disqualified from receiving a schedule loss of use award. Prevailing party represented by: Alison Kent-Friedman of counsel to the NY State Insurance Fund for LeFrak City Management and another, respondents. [2B203-7772]

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Torres v Kaufmans Bakery
November 8, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the carrier is entitled to reimbursement from the Special Disability Fund (Fund). After claimant developed bilateral carpal tunnel syndrome and flexor tenosynovitis that became disabling in 2005, his claim for work comp benefits was established and eventually classified with a permanent partial disability. He subsequently obtained WC benefits for a 2004 back injury that was determined to be permanent. The carrier’s application for reimbursement from the Fund per WCL §15[8][d] was approved. The Fund's sole argument upon appeal is that claimant's back injury did not constitute a prior permanent impairment that hindered his ability to work. While claimant did not limit his work duties with the employer as a result of the back injury, the record reveals that his employer's business closed and claimant was laid off a few days after it occurred. Claimant testified that the condition played a role in his subsequent job search, and the medical evidence in the record reflects that the injury was disabling and significantly restricted the type of work he could perform. Several doctors opined that the disability stemming from the back injury was permanent, and one stressed that the back injury enhanced claimant's overall disability. Substantial evidence thus supports the Board's determination that claimant had sustained "a preexisting permanent physical impairment which was or was likely to be a hindrance or obstacle to employment within the scope of the statutory provision.". Prevailing party represented by: Karen M. Darling of counsel to Hamberger & Weiss (Buffalo) for Kaufman's Bakery and another, respondents. [2B203-7771]

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Ward v General Utils
November 8, 2012 NYS Appellate Division, Third Department
§44 App't Dust Diseases

AFFIRMED the Board’s decision that claimant sustained a work-related occupational disease (WROD) and awarded benefits. Claimant, employed as an oil burner mechanic for over 40 years, when, in March 2007, he claim for a WROD. Ultimately, a Law Judge determined that, based upon an IME, claimant suffered from asbestosis with a date of disablement of May 17, 2006 and determined that, per WCL §44-a, claimant experienced the last injurious exposure to asbestos during his employment with Astro Fuel Service Company, generating this appeal. Here, claimant testified that Astro was the last employer for which he worked prior to his date of disablement, that he had been exposed to asbestos while so employed and that, despite performing some work on his own after leaving Astro, he had not been exposed to asbestos. While a representative of Astro testified that claimant was not exposed to asbestos during his employment there, credibility determinations and the resolution of conflicting evidence are within the exclusive province of the Board Thus, despite the existence of evidence that would have supported a contrary conclusion, the Board's decision is supported by substantial evidence.”. Prevailing party represented by: Peter M. DeCurtis of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for General Utilities and another, respondents and Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for Bright Burner Service and another, respondents. [2B203-7770]

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Simpson v Nassau Extended Care
November 1, 2012 NYS Appellate Division, Third Department
§25-a: True Closing

REVERSED the Board by ruling that liability per §25-a did not transfer to the Special Fund for Reopened Cases (Fund). Claimant initially sustained an injury in September 2002, lost time benefits for a period between September 2002 and December 2002. After a second injury in September 2005, she received benefits from September 2005 to October 2005 and, after a third injury in January 2009, she was awarded benefits for two periods between February 2009 and October 2010. In July 2009, the report from an IME – procured by Liberty Mutual, the carrier for the 2009 claim– opined that claimant's injuries should be apportioned 33 % each to her 2002, 2005 and 2009 injuries. Subsequently, Healthcare Industry Trust of New York, the carrier at the time of claimant's 2002 injury, raised the issue of WCL §25-a with regard to that claim. The Board that the 2002 claim was subject to § 25-a, transferring liability to the Fund, discharging Healthcare Industry Trust.

In reversing the Board, the Court found the Board’s decision to be inconsistent. “This Court has consistently held, as has the Board, that the filing of a medical claim that apportions liability to a prior claim constitutes an application to reopen the prior claim. Here, the IME unequivocally states that claimant's current injuries should be apportioned 33 % to the 2002 claim. The record establishes that the report was submitted to the Board in July 2009, within seven years of claimant's September 2002 injury. Absent an explanation by the Board regarding its departure from its own precedent, the Board erred in determining that the IME’s report did not constitute an application to reopen the 2002 claim and, thus, liability should not have been transferred to the Special Fund.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. [2B202-7769]

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Tamara v Airborne Express
November 1, 2012 NYS Appellate Division, Third Department
§29: 3rd Party/MVA liens

REVERSED the Board by finding that the carrier was not entitled to offset its future compensation to claimant per WCL §29(4). After claimant had her 2004 work-related injury claim established and comp and medical awards made, claimant in January 2007 initiated a personal injury action against numerous third parties, settling in February 2009 for $155,000 with the consent of the employer. When, in 2010, claimant sought to reopen her claim to establish an SLU, the employer, inter alia, asserted that if entitlement to an award were established, it was entitled to an offset from the $155,000 settlement proceeds per §29(4). Although a Law Judge found that the carrier had waived its right to an offset, a Board panel reversed, find that, at the time of the settlement, the employer had reserved its rights.

The Court noted that the right to an offset must be reserved "unambiguously and expressly" when giving consent to the settlement, or such right is deemed waived. The final settlement agreement, to which the employer was a party, stipulated that all claims would be settled for the amount of $155,000 "plus waiver of [w]orkers' [c]omp lien." Inasmuch as the lien waiver set forth in the settlement made no discernment between the type of lien – present or future – to be waived pursuant Workers' Compensation Law § 29, the Court could not agree with the Board that the employer "plainly and unambiguously" preserved its right to a future offset to the settlement and, consequently, the Board's determination was not supported by substantial evidence.Prevailing party represented by: Jonathan R. Klee of counsel to Klee & Woolf (Mineola) for appellant. [2B202-7768]

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|— — OCTOBER 2012 — — |

Lama v SPK Rest
October 25, 2012 NYS Appellate Division, Third Department
Employment: Who is

REVERSED the Board and Law Judge both of whom ruled claimant worked for SPK d/b/a Wall Street Grille. The claimant stated he had worked for Mr. Gelestathis and, in the wake of the September 11, 2001 terrorist attacks, had cleaned up debris outside restaurant in a building located at 325 Broadway, allegedly a single story building in which was located Empire Restaurant. But the record showed that(1!) 325 was a multi-story building, (2) 325 never had a restaurant named Empire located there, (3) Empire was located on a one story building at another location, (4) Gelestathis had sold his restaurant at 325 Broadway to SPK in 2000, and (5) claimant did not identify either the 5 Star Deli & Restaurant or the Wall Street Grille as the restaurant located at 325 Broadway. The Court found that ,contrary to the Board’s determination that claimant’s statement of his employment at SPK was insufficient to find employment, the fact remains that there was nothing in the record to support a finding that claimant was employed by SPK. Prevailing party represented by: Charles L. Browning of counsel to the NY State Insurance Fund, appellants. Commissioners of Record: Lower, Finnegan, Foster WCB #0064 6247[2A201-7765]

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Suburban Restoration v NYS Comptroller
October 18, 2012 NYS Appellate Division, Third Department
Is NYSIF Private or Public

The Appellate Court affirmed the right of the New York State Insurance Fund (NYSIF) to ask another state agency to withhold payment to that other agency’s contractor on the grounds that NYSIF had a valid default judgment against that contractor. Essentially, the respondent, the Controller’s Office argued that, if a claimant is owed money by a state agency but also owes money to the same or another state agency, respondent may subtract and withhold the money owed to the state from the money owed by the state, thereby facilitating the collection by the state of money it is due. Petitioner argues that SIF is more akin to a private insurance company than a state agency, rendering it improper for respondent to exercise such authority. The Court opined that although SIF is treated like a private company for some limited purposes and has some measure of separate identity from the state, the Court of Appeals has held that "SIF was created and exists as a [s]tate agency" and is "a [s]tate agency for all of whose liabilities the [s]tate is responsible" (id. at 374). As SIF is a state agency, respondent had the authority to exercise its right to offset money owed by petitioner to SIF against money owed to petitioner by other agencies. Hence, respondent did not abuse its discretion, and the determination was not arbitrary, capricious or affected by an error of law. [2A200-7764]

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| — — SEPTEMBER 2012 — — |

 

NY Hosp Med of Queens v Microtech
September 26, 2012 NYS Appellate Division, Second Department
§11: Jurisdiction

AFFIRMED  a motion to dismiss a an action for contribution and indemnification because the injured workers were allegedly undocumented aliens. When the allegedly undocumented aliens, employees of a subcontractor, the defendant, were injured, they sued the owners of the property, the plaintiffs, for damages relating to their injuries predicated upon violations of the Labor Law. After the plaintiff commenced this separate action seeking contribution and indemnification from defendant, the Supreme Court approved defendant’s motion to dismiss the complaint on the ground that the plaintiffs claims for contribution and indemnification were barred by WCL §11. The plaintiff did not allege that it was entitled to contribution or indemnification pursuant to a written contract, or that the subject employees suffered a grave injury. Rather, they asserted that the defendant failed to verify the immigration status of the subject employees and that this failure constituted a violation of the Immigration Reform and Control Act of 1986 (8 USC § 1324a; hereinafter the IRCA). The plaintiff contended that this violation should result in the loss of protections provided to employers under the WCL and that the subject motion should therefore have been denied. After a detailed analysis of the legislative, and humanitarian, aspects of the IRCA and the NYS WCL, the Court wrote that

“The IRCA does not contain an explicit statement that Congress intended to preempt state laws such as New York's WCL. To the contrary, the legislative history of IRCA shows that the Act was not intended to undermine or diminish in any way labor protections in existing law. Moreover, nothing in the relevant provisions of the WCL seeks to impose ‘civil or criminal sanctions . . . upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens’. To accept the defendant's contention would not only effectively deny defendant the economic protections it acquired under WCL §11 in return for providing the subject employees with compensation for their injuries, but it would relieve the defendant of its responsibility to ensure a safe construction site for workers under the Labor Law. Such results would not be consistent with the legislative intent behind these statutes, which are designed to strike a balance between the needs of business and the importance of the welfare of workers. We conclude that the IRCA does not preempt the applicable provisions of the WCL and that the violations of the IRCA alleged here do not abrogate the protections provided to Defendant by WCL §11 from third-party claims for contribution and indemnification." [2A198-7763]

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Johnson v Del Valle
September 28, 2012 NYS Appellate Division, Fourth Department
Course of Employment: in and out of «»1100...Course of Employment: in and out of

REVERSED the Supreme Court order that granted the motion of defendant for summary judgment and dismissed the complaint on the grounds that the plaintiff raised a triable issue of fact "whether the actions of defendant were within the scope of his employment by submitting evidence that defendant's conduct was neither common nor condoned" in their workplace. Plaintiff commenced this action seeking damages for injuries he sustained at work when defendant, plaintiff's coemployee, allegedly threw a baseball that struck plaintiff's face. Defendant moved for summary judgment dismissing the complaint on the ground that workers' compensation is plaintiff's exclusive remedy. The Appellate Court ruled that Workers' compensation is the exclusive remedy of an employee injured "by the negligence or wrong of another in the same employ" WCL §29[6]). "[T]he words in the same employ' as used in the Workers' Compensation Law are not satisfied simply because both plaintiff and defendant have the same employer; a defendant, to have the protection of the exclusivity provision, must . . . have been acting within the scope of his [or her] employment and not have been engaged in a willful or intentional tort," a fact yet to be proven. [2A198-7762]

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Braasch Constr v NYSIF
September 28, 2012 NYS Appellate Division, Fourth Department
Late Notice to Carrier «»9998...Other

The issue on this appeal is whether the plaintiff Donald Braasch Construction (DBC) had a good-faith and reasonable belief that its Workers' Compensation and Employers' Liability Policy with defendant did not cover the accident and resultant litigation. Although the accident in question occurred in 1994 and, in April 1995, the personal injury plaintiffs commenced that lawsuit DBC. It is undisputed that DBC did not notify defendant of the accident or the personal injury lawsuit until May 1997, at which time defendant disclaimed coverage on the ground that the notice was untimely. Plaintiffs moved for summary judgment seeking a declaration that defendant must reimburse plaintiffs for part of the settlement. Counterclaims were made to the effect that while formal notice had not been given, informal notice had been. As such the Court determined that there are triable issues of fact whether DBC's belief in noncoverage was reasonable. [2A198-7761]

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Drummond v NYC Employees' Retirement Sys

September 26, 2012 NYS Appellate Division, Second Department
Disability: Degree of or R/E «»5020...Disability: Degree of or R/E

AFFIRMED the Supreme Court, Kings County, decision that the decision by the Medical Board of the New York City Employees' Retirement System (hereinafter the Medical Board) to deny the petitioner's application for disability retirement. The Medical Board) determines whether a member applying for disability retirement is disabled. The Board of Trustees of the New York City Employees' Retirement System (hereinafter the Board of Trustees) is bound by a Medical Board finding that an applicant is not disabled for duty. Both Courts agreed that “The Medical Board's determination is conclusive if it is supported by ‘some credible evidence’ and is not ‘arbitrary or capricious.’ In addition the Appellate Court added that Contrary to the petitioner's contention, the finding by the Workers' Compensation Board and the Social Security Administration that he is disabled was not binding on the Medical Board. [2A198-7760]

The Insider There are also a number of cases in which the Courts have affirmed that the reverse is also true: The finding of the Medical Board and the Social Security Administration regarding the status of an injured worker is not binding on the Workers' Compensation Board.

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Brennan v Village of Johnson City
September 27, 2012 NYS Appellate Division, Third Department
§114-a: Fraud «»5130...§114-a: Fraud

AFFIRMED the Board’s decision that, due to a 2002 finding of §114-a fraud, the pro-se claimant was permanently disqualified from receiving wage replacement benefits. Claimant had his 1995 claim established for injury to his back. In 2002, the Board found that claimant violated WCL §114-a, assessing a penalty of permanent disqualification from wage replacement benefits. Although in 2010 the claim was expanded to include both hips, the claimant’s attempt to have the previously imposed penalty lifted on this basis was denied. The Court agreed with the Board that, “. . . inasmuch as claimant did not appeal from the Board's 2002 decision regarding his violation of §114-a, . . . the time to do so has long since passed, any arguments raised with regard to that decision and the penalty imposed are not properly before us.” The Court also noted that the law does not require the penalty be reviewed and, although the Board has the discretion to do so, the Court will not question that decision absent the showing of abuse of that discretion. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee . of counsel to the Special Funds Conservation Committee WCB 9960-0052 [29197-7759]

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Siddon v Advance Energy Tech
September 27, 2012 NYS Appellate Division, Third Department
§114-a: Fraud «»5130...§114-a: Fr

AFFIRMED the Board’s decision that, the pro-se claimant was permanently disqualified per §114-a from receiving wage replacement benefits. Claimant in 2006 filed her claim for back injuries, testifying that she had never been treated by a physician for any back pain or injuries and had never missed any work due to back pain prior to her 2006 injury. Although her medical records reflect several complaints of back pain and treatment for back injuries between 1993 and 2006, resulting in numerous missed days from work, her later testimony that she did not recall the injuries or the missed time from work when she initially testified rebutting in an award of compensation by a Law Judge. The Board, on appeal, found that the claimant had violated Workers' Compensation Law § 114-a by failing to reveal her prior back injuries. The Court ruled that “The Board's determination as to whether a claimant has made a material misrepresentation in violation of Workers' Compensation Law § 114-a will not be disturbed if supported by substantial evidence." Prevailing party represented by: John B. Paniccia of counsel to Stockton, Barker & Mead (Albany) for Advance Energy and another, respondents Commissioners of Record: Bargnesi, Libous, Finnegan WCB #5070 4239 [29197-7758]

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Roberts v Waldbaums
September 27, 2012 NYS Appellate Division, Third Department
Causal Relationship: Death «»1020...Causal Relationship: Death

AFFIRMED the Board’s ruling that the death of claimant's husband was causally related to his employment. Decedent, a receiver at a grocery store, was reassigned on Super Bowl Day to be the acting store manager. At approximately 7:00 P.M., decedent collapsed to the floor of the store and soon after died. Although the Law Judge found no causally relationship, the Board reversed and established the claim. The Court noted that the Board not only relied on the presumption under §21 but also determined that despite the amount of evidence supported by the claimant’s and carrier’s expert, but it also determined that the preponderance of evidence supported the causal relationship.. Prevailing party represented by: Patrick M. Conroy of counsel to Polsky, Shouldice & Rosen (Rockville Centre) for Colleen Roberts and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #023 2436 [29197-7757]

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Mucci v NYS Dept of Corr
September 27, 2012 NYS Appellate Division, Third Departmen
§25-a: True Closing «»3140...§25-a: True Closing

AFFIRMED the Board’s ruling that liability shifted per WCL §25-a to the Special Fund for Reopened Cases. Claimant, who had a 11996 injury to his left knee requiring surgery, returned to work in May 1997. IN February 1998, a Law Judge found no evidence of permanency and closed the case. In July 2009, claimant re-injured his left knee in a non work-related incident that required further surgery. Claimant raised issues of scheduled loss of use and permanency in September 2010 and the carrier thereafter successfully requested that liability for claimant's 1996 case shift to the Fund. Here, the Board's determination that the case was truly closed in 1998 is supported by evidence in the record. At that time, claimant had returned to work, had no further compensable lost time, no further payments of compensation were made and no further proceedings were contemplated. While the Fund contends that a medical report from June 1997 — which indicates that at some point it is to be expected that claimant will have arthritic changes to his knee — is proof that the case was not closed, the Court noted that "[t]he existence of the employer's potential liability for future treatment, or the possibility that the claimant's condition could deteriorate resulting in the case reopening, does not mean that the matter was not fully closed." Prevailing party represented by: Charles L. Browning of counsel to NYSIF for New York State Department of Corrections and another, respondents Commissioners of Record: Ferrara, Libous, Williams WCB #5970 1529 [29197-7756]

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Nanni v Source Corp
September 27, 2012 NYS Appellate Division, Third Department
§25-a: True Closing «»3140...§25-a: True Closing

AFFIRMED The Board’s ruling that liability shifted per WCL §25-a to the Special Fund for Reopened Cases. After suffering in January 2003 from work-related right carpel tunnel syndrome and right thumb injury and being awarded benefits, claimant underwent surgery on her right hand and, shortly thereafter, returned to her regular employment duties. In 2004, claimant was awarded a 7.5% schedule loss of use (SLU) of her right hand, and medical treatment and care was authorized, as needed, with no further action to be taken by the Board. Final payment for that SLU award was made in August 2004. In 2006, claimant was approved for additional surgery on the right hand and again resumed employment without restrictions and was referred to physical therapy. In March 2008, the case was reopened and directed to travel with an associated and controverted claim for a 2006 work-related right elbow injury. On August 4, 2008, the Board, although noting that there is a possibility of permanency based upon the nature of the injury, found insufficient evidence of any such disability and closed the case based upon prior findings with no further action planned. In July 2010, when the case was reopened to consider an increased schedule loss of use or permanency to claimant's right hand, the carrier requested liability be shifted to the Fund per §25-a. A Law Judge found a 25.2% SLU, awarded benefits and discharged the Fund. On appeal, a Board panel, finding that the case was truly closed by decision on August 4, 2008, shifted liability to the Fund. Here, although the Board acknowledged the possibility of permanency in the August 4, 2008 decision, "[t]he fact that a 'claimant's condition may change or worsen in the future' does not preclude a finding that the claim is truly closed." The only potential issue following the August 4, 2008 decision was whether an SLU increase would arise in the event that claimant's condition worsened. The record established that no issue of increased SLU or permanency was raised after her 2006 surgery until the Board received the medical opinion of claimant's physician on May 14, 2010. the Curt determined that the Board's decision that the case was truly closed by the August 4, 2008 decision was supported by substantial evidence. Prevailing party represented by: Jason M. Carlton of counsel to Gitto & Niefer (Binghamton) for Source Corporation and another, respondents Commissioners of Record: Lower, Libous, Foster WCB #9030 4128 [29197-7755]

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Hollis v Morelli Masons
September 27, 2012 NYS Appellate Division, Third Department
§23: Late/Interlocutory/Frivolous Appeal «»7010...§23: Late/Interlocutory/Frivolous Appeal

DISMISSED a claim because the Board's decision is interlocutory in nature and does not dispose of all substantive issues or reach threshold legal issues that may be determinative of the claim and, therefore, is not properly the subject of an appeal. WCB #0001 0425 [29197-7754]

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Sola v Corwin
September 27, 2012 NYS Appellate Division, Third Department
Schedule Loss of Use issues «»5050...Schedule Loss of Use issues

AFFIRMED the Board’s ruling finding a schedule loss of use (SLU).and awarded workers' compensation benefits. Although the carrier’s IME did an exam as directed, the late filing of the report resulted it its preclusion per WCL §137. The Court determined that the preclusion was correct and that the Board's determination on the SLU issue was supported by substantial evidence even if the only medical evidence before it was that of claimant's treating physician. Prevailing party represented by: Davin Goldman of counsel to Klee & Woolf (Mineola) for Miguel Sola and Iris A. Steel of counsel to the NYS Attorney General, for WCB. Commissioners of Record: Lower, Finnegan, Foster WCB #2070 3406 [29197-7753]

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Beth V v NYS Off of ChildrenFam Svcs
Septmber 27, 2012 NYS Appellate Division, Third Department
§29: 3rd Party/MVA liens «»3160...§29: 3rd Party/MVA liens

AFFIRMED the Board’s ruling that the workers' comp carrier can take credit against claimant's third-party settlement recovery. As the result of a physical assault while working at a juvenile detention center, her case was established for physical injury, posttraumatic stress disorder and rape; she was classified with a permanent partial disability; and she was awarded workers' compensation benefits. A subsequent suit in federal Court was ultimately settled for $650,000. After the comp carrier waived any lien for benefits already paid but reserved its right under WCL §29 to take a credit for future benefit payments against claimant's net recovery, claimant challenged the carrier's right to take such a credit, arguing that the offset provisions of §29 do not apply to her settlement proceeds. Although a Law Judge agreed, a Board panel reversed. The Court noted that, “When a claimant obtains recovery in a civil action for the same injuries that were the predicate for workers' compensation benefits, the carrier has a lien against any recovery . . . even where the action is brought against an employer or a co-employee.” Since the claim and settlement supported the Board's conclusion that the injuries for which claimant recovered in the settlement were the same injuries for which workers' compensation benefits were awarded, the carrier is entitled to a credit against the settlement recovery.. Prevailing party represented by: Thomas A. Phillips of counsel to NYSIF for New York State Office of Children & Family Services and Jill B. Singer of counsel for Special Funds Conservation Committee. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5050 1070[29197-7752]

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Rodriguez v New Sans Souci
September 27, 2012 NYS Appellate Division, Third Department
§29: 3rd Party/MVA liens «»3160...§29: 3rd Party/MVA liens

AFFIRMED the Board’s ruling that suspended claimant's workers' comp benefits pending proof that the employer's workers' comp carrier consented to the settlement of claimant's third-party action. Based on a May 9, 1999 accident, claimant was awarded benefits and two surgeries resulting in his 2005 classification with a partial disability and continuing payments. Thereafter, the carrier requested further action to determine if claimant settled an action against a third party in 2001, without consent, that involved an alleged May 6, 1999 work-related injury to his back, which, according to the carrier, included compensation for surgery and medical treatment that he received in connection with his May 9, 1999 workers' comp claim. A Law Judge suspended any further comp payments, directing claimant to produce proof of consent to settle the third-party action. Here, the record establishes that claimant utilized medical bills and treatment pertaining to the May 9, 1999 injury claim in connection with the settlement of his claim regarding the alleged May 6, 1999 incident. Under these circumstances, and given that "[a] substantial part of the legislative purpose and intent of Workers' Compensation Law § 29 . . . is to prevent double recovery", the Court wrote that it would not disturb the Board's finding that claimant must produce evidence of a nunc pro tunc order or of the carrier's consent to the settlement of the third-party action. Prevailing party represented by: Sarah A. Thomas of counsel to Jones Jones (New York City) for New Sans Souci, N.H. and another, respondents Commissioners of Record: Lower, Finnegan, Foster WCB #0993 0278 [29197-7751]

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Murphy v Riverside Gas & Oil
September 27, 2012 NYS Appellate Division, Third Department
3100...§15(8) «»3100...§15(8)

REVERSED the Board’s ruling that the comp carrier is entitled to reimbursement from the Special Disability Fund (Fund). In 2004, after 20 years as a truck driver, claimant applied for benefits based upon pain in his right shoulder and rotator cuff that was the result of traveling "over many miles for years of work." His claim was established with a date of injury of October 7, 1998 and a date of disability of August 4, 2004 and he had surgery on his rotator cuff in 2007. The carrier sought reimbursement from the Fund under WCL §15(8) due to, among other things, preexisting right shoulder problems Although conflicting information was given by both the claimant’s and carrier’s medical experts, the Board granted the application. In reversing the Board, the Court wrote, “Based upon our review of the record, there is not sufficient evidence to determine whether claimant's subsequent condition was "separable from the prior pre-existing permanent condition and not merely . . . the culmination or the progressive process of the same disease or condition of which the pre-existing condition was a symptom or part." Accordingly, the decision must be reversed and the matter remitted for further development of the record.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Williams WCB #5040 6162 [29197-7750]


| — — JULY 2012 — — |


Weiner v City of New York
May 31, 2012 NYS Court of Appeals
§11: Election of Remedies

AFFIRMED the order of the Appellate Division Second Department, which reversed the Supreme Court, by finding that Weiner’s action against the City of New York, his employer, was barred by his receipt of workers' compensation benefits, and that he could not sue the City in its landlord role. An emergency medical technician for the NYC Fire Department, he was hurt while aiding an injured person on a boardwalk, after which he applied for and received workers' comp. He then sued the City and its Parks and Recreation Department, alleging both common law negligence and a cause of action under General Municipal Law § 205-a. In addition to having his suit denied on the grounds that workers comp benefits are "[t]he sole and exclusive remedy of an employee against his employer for injuries in the course of employment", the Court denied Weiner’s contention that he may bring this action against the City pursuant to § 205-a, because that statute gives a right of action to "any officer, member, agent or employee of any fire department" who is injured on duty, "[i]n addition to any other right of action or recovery under any other provision of law" (General Municipal Law § 205-a [1]).. acknowledging that there is a difference in wording between General Municipal Law § 205-a (pertaining to firefighters) and General Municipal Law § 205-e (pertaining to police officers),” the Court found that “in his Memorandum approving the last major amendment of General Municipal Law § 205-a, in 1996, Governor Pataki expressly stated that municipalities (outside New York City) ’that provide workers' compensation for their firefighters and police officers . . . will not incur any additional liability, for nothing in the bill affects the provisions of existing law stipulating that the right to compensation or benefits under the workers' compensation law is an exclusive remedy an employee has against an employer or co-employee for injuries incurred in the course of his or her employment.’” The Court concluded that " We conclude that it was not the intent of the Legislature to allow recipients of workers' compensation benefits to sue their employers in tort under § 205-a.” [27185-7749]

Gabriel v Johnston's LP Gas
June 15, 2012 NYS Appellate Division, Fourth Department
Undocumented worker

In a case that may have ramifications in workers comp litigation, the Appellate Division, Fourth Department, found that undocumented workers who are bringing a claim in civil court as a result of injuries sustained at their place of employment who have left the United States and then, for very specific reasons, cannot return to the United States, can have their depositions and trial testimony done by via video. In a detailed 9-page decision, the Appellate Court reversed a lower Court ruling, concluding that the lower court abused its discretion in denying those parts of plaintiffs' motion with respect to both the depositions and the trial testimony. Essentially, one undocumented farm worker was killed and nine others suffered severe injuries in the explosion of gas in the building in which they lived while doing farm work. Although their reasons for leaving the United States range from the desire to call home for medical treatment to some being forcibly deported, none were able to return to the United States, the attempt to return blocked by various legal and visa restrictions. Contrary to the contention of the defendant companies, The Court wrote that “our determination is consistent with sound public policy. ‘An alien unauthorized for employment in the United States is not barred from seeking to recover . . . in a personal injury action’ is instructive on this point” as were their references to various section of the CPLR. [27185-7748]

Commissioners of NYSIF v Ramos
June 6, 2012 NYS Supreme Court -NY County
Interesting Court Opinion

In 1996, after their firm has been substantially in debt to the New York State Insurance Fund, defendants, changed the name of their company from J.M.R. Concrete Corp. To J.M.R. Concrete Corp of Long Island, keeping their offices at the same location, with the same employees in the same positions at the same salary, with the same office furniture, same phone number, and doing exactly the same type of business as they did with their predecessor company. Seeking to have dismissed various claims against their new firm and each of the owners individually, the company owners presented a list of twenty-three (23) affirmative defenses and two (2) cross claims. In a excellence example of economic use of concise legal language the Judge, addressing these defenses, wrote, “To paraphrase famous legal dicta, this Court cannot define b.s. but it knows it when it smells it. [27185-7747]

The Insider I think that many feel this quote also applies to some of the decisions issued by the Board.

Vargas v NYC Employees Retirement Sys
May 30, 2012 NYS Appellate Division, Second Department

Disability: Degree of or R/E

Once again, The Appellate Court, this time the Second Department, again stated that “a disability determination by the Worker’s Compensation Board does not control the [New York City Employees Retirement System’s] Medical Board’s disability determination. In this case, the plaintiff was denied his application for accidental disability retirement benefits pursuant to Retirement and Social Security Law 605-b. [27185-7746]

Rice v West 37th Group
June 12, 2012 NYS Appellate Division, First Department
Causal Relationship: Death

AFFIRMED The Court confirmed the long-standing position of the Worker’s Compensation Board that accidental overdose of prescribed pain medication was a foreseeable consequence of the serious injuries suffered by plaintiff's decedent and therefore was a “grave injury” within the meaning of workers compensation law §11. As a result of the injuries he sustained from the worksite accident, the decedent began seeing a pain management physician, second third-party defendant, Joseph Carfi, M.D., and a psychologist, second third-party defendant, Bruce Herman PhD. Two years after the accident, the decedent died, and the autopsy ruled the cause of death to be accidental due to an "acute intoxication due to combined effects of Fentanyl, Diazepam [Valium] and Alprazolam [Xanax]," with a contributing cause of "atherosclerotic cardiovascular disease." [27185-7745]

Digirolomo v Goldstein
June 27, 2012 NYS Appellate Division, Second Department

Employment: Who is

AFFIRMED a lower Court ruling in a home health aide, assigned by her employer to assist Brown, was not a special employee of Brown and therefore Brown's estate was denied a motion for summary judgment dismissing the complaint is hard by the exclusivity provisions of the workers compensation law. Although Brown's estate argued that Digirolomo attended to Brown's needs at Brown's direction, "being told what job to do does not suffice to demonstrate the existence of a special employment relation", particularly when Digirolomo was determined to be an employee of Better Home Health Care, Inc., and assigned as their employee, trained and given direction by and in daily contact with Better Home Healthcare. [27185-7744]

| — — JUNE 2012 — — |


Donato v Aquarian Designs
June 28, 2012 NYS Appellate Division, Third Department
§114-a: Fraud

REVERSED the Board by finding ,claimant did not commit fraud per §114-a due to number of factual inaccuracies and mischaracterizations by the Board of claimant's testimony. Claimant was self-employed in May 2005 when he suffered established injuries to his ribs, head, neck, back, left shoulder and left clavicle, including a right orbital fracture, pulmonary contusions, collapsed lungs and a traumatic brain injury, and also was diagnosed with adjustment disorder with depressed mood and anxiety condition and post-concussive syndrome. After receiving benefits at a partial disability rate, the carrier raised the issue of whether claimant fraudulently misrepresented the extent of his incapacity, per §114-a, a claim ultimate agreed to by a Board panel. The claimant, whose medical records, apparently not used by the panel in making its determination, reported that claimant's thoughts are "disordered, disorganized and tangential" and that he has a "poor memory." Claimant did testify that he did various amount of work but was limited in how long he could do it and noted some limits on the level of work he could accomplish. While videotapes did show the claimant indulging in heavy work, “his efforts were punctuated by long periods of inactivity. Claimant also is observed frequently leaning against or grabbing stationary objects to gain stability. And, to the extent that the Board cited the work performed by claimant on a piece of rental property that he owns, the record clearly demonstrates that the property was purchased and the restoration completed prior to claimant's accident,” contrary to statement by the carrier’s investigator. The Board also determined that the claimant’s statement that he did not remember some things evidenced by video tape, the Court determined that although the Board found this equivocal "denial" amounted to a knowingly false statement, the Court cannot conclude, as the Board did, that such statement was made for the purpose of obtaining benefits – particularly when claimant readily admitted to engaging in activity that was far more physically taxing. Under these circumstances, the Court stated that the Board's decision was not supported by substantial evidence in the record as a whole. Prevailing party represented by: Brendan G. Quinn of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Commissioners of Record: Higgins, Libous, Bell WCB #5050 9600 [26184-7743]

Richardson v Schenectady CSD
June 28, 2012 NYS Appellate Division, Third Department
Voluntary Withdrawals

AFFIRMED the Board’s ruling that claimant voluntarily removed himself from the labor market. Claimant, a health teacher, sustained a variety of compensable injuries, including to his head and back, while breaking up a fight between students in February 2006. In December 2008, claimant submitted a letter to the employer, informing it that he would be retiring effective June 2009. Subsequent to claimant's retirement, the carrier sought to suspend benefits based upon claimant's voluntary withdrawal from the labor market, a position with which the Board panel agreed. The Board’s decision was based on several facts. (1) An IME opined that, while claimant suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.(2) claimant's letter informing the employer that he was taking advantage of a very favorable retirement incentive made no mention of the fact that his physical disabilities played a role in his decision to retire. (3) Claimant testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions. Prevailing party represented by: Jeffrey M. Fox of counsel to Walsh & Hacker (Albany)for Schenectady City School District and another, respondents. 26184-7742]

Visic v O'Nero & Sons Constr
June 21, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR

REVERSED the Board’s denial of a Full Board Review (FBR) on the grounds that the denial of pro-se claimant's request for reconsideration was arbitrary and capricious. The claimant’s 2000 injuries to his neck and back resulted in a 2008 finding of a marked permanent partial disability, affirmed by the Court (74 AD3d 1646 [June 24, 2010]). After the claimant sought to reopen his case in July 2010 to change his disability to totally disabled based upon medical reports from January 2009, February 2009, and April 2009, the Board in January 2011 refused to reopen the claim, finding that claimant had not submitted new evidence to support his application or evidence of a change in medical condition at a March 25. 2009 hearing, and that there was no basis for reopening the claim in the interest of justice. This reasoning was reiterated when his request for FBR was denied. However, the Court noted that the March 29, 2009 hearing was convened solely for the purpose of addressing claimant's average weekly wage and, in fact, when claimant sought to offer medical evidence as to a change in his condition, the Law Judge declined to receive it, stating that the hearing was not for the purpose of revisiting claimant's degree of disability. Accordingly, the Court wrote that Board's denial of claimant's request for reconsideration was arbitrary and capricious and must be reversed. Prevailing party represented by: himself, pro-se Commissioners of Record: Donna Ferrara, Ellen O. Paprocki, Mark D. Higgins WCB #8001 4737 [26184-7741]

Belaska v NYS Dept of Law
June 21, 2012 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant's injury did not arise out of her employment. There was no question that claimant was injured in an altercation with a passenger she did not know, while exiting a city bus, taking her to a nearby parking lot after work. The only question being was the injury in and out of the course of employment. The Board ruled that the “assault on claimant arose from personal hostilities unrelated to her employment” but with how fast she was exiting the bus. AS such, the issue of whether her ride on the bus was in the course of employment was moot. Prevailing party represented by: Nancy E. Wood of counsel to the State Insurance Fund for New York State Department of Law and another, respondents. Commissioners of Record: Ferrara, Libous, Williams WCB #011 7410 [26184-7740]

Motion for leave to appeal denied by Court of Appeals on October 25, 2012

Soluri v Superformula
June 21, 2012 NYS Appellate Division, Third Department
Disability: Degree of or R/E

AFFIRMED the Board’s ruling on degree of disability: mild partial rather than a total permanent disability. Claimant’s 2001 injury resulted in an established claim for injuries to his low back and left hip. After a finding TPD, the carrier sought a review which, due to significant differences in the medical opinions provided, resulted in a referral to an impartial specialist. Thereafter, the Board determined that claimant had a mild permanent partial disability. The Court disagreed with claimant’s argument that the Board improperly relied upon the opinion of the impartial specialist because he did not refer to the Board's medical guidelines. The Court determined that, “While the guidelines provide useful criteria to be used in assessing a claimant's degree of disability, the ultimate determination rests with the Board and must be upheld if it is supported by substantial evidence.” After the impartial specialist indicated that there were no objective or physiological findings in the prior medical exams to explain claimant's complaints of pain, he concluded that claimant had a mild partial disability. The impartial specialist’s reflected that claimant did not meet the criteria set forth in the guidelines regarding total permanent disability. Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Superformula Products and another, respondents.Commissioners of Record: Bargnesi, Higgins, Bell WCB #6020 4229 [26184-7739]

Kirisits v Durez Plastics
June 14, 2012 NYS Appellate Division, Third Department
§25-a: Reimbursement Period

AFFIRMED the Board’s ruling that WCL §25-a is inapplicable to claimant's award of workers' compensation death benefits. Following his retirement Kirisits (hereinafter the decedent) in 1994 successfully filed for a claim for occupational disease (pleural asbestosis) with a disability date of 1993. No compensable lost time was found and reimbursement relief was set WCL §15(8)(ee). After his death in 2008, when claimant, decedent's widow, filed for death benefits alleging that decedent died of mesothelioma due to long-term occupational exposure to asbestos, the carrier sought to shift liability for that claim to the Special Fund for Reopened Cases per §25-a claiming that more than seven years had elapsed since the establishment of the underlying disability claim. A Board panel, reversing the Law Judge, fund §25-a inapplicable because the death benefit claim is based on a new occupational disease that is separate and distinct from the workers' compensation disability claim. First, the death benefit claim is premised on a new occupational disease (mesothelioma), separate and distinct from the pleural asbestosis disease established in the underlying disability claim. Second, "[I]t is generally accepted that a claim for death benefits . . . is a separate and distinct legal proceeding brought by the beneficiary's dependents and is not equated with the beneficiary's original disability claim." Therefore, there is no seven-year period to ‘trigger’ the application of §25-a.Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #024 0914 [26184-7738]

Wiess v Mittal
June 14, 2012 NYS Appellate Division, Third Department
Apportionment: Awards, SLU

AFFIRMED the Board’s decision on two appeals, one requiring Bethlehem Steel to produce evidence and the second finding apportionment between Arcelor Mittal and Bethlehem Steel. Employed as a steel worker from 1956 to 2008, always in the same facility, his first employer Bethlehem went bankrupt in 2003, its assets then acquired by Arcelor. In 2008 claimant filed for hearing loss against Mittal which sought apportionment with Bethlehem. Although Bethlehem controverted the claim on the ground that Arcelor had not satisfied the notice requirements of WCL §49-ee(2), a Law Judge apportioned the award based on claimant’s length of service with both firms. A Board panel agreed but wanted development of the record on the issue of Bethlehem's actual knowledge of the injury, requesting Bethlehem produce records of hearing tests conducted during claimant's employment for this purpose.

When Bethlehem’s attorney admitted the existence of such records but their inability to find them, the Board panel declined to reconsider the method of apportionment. Although Bethlehem was correct stating that Arcelor concededly failed to comply with the statutory notice requirements for such a claim unless the prior employer had advance knowledge of the injury, Bethlehem was liable on the ground that it did have such knowledge based on the 2009 report of an examining physician who determined that claimant had a binaural hearing loss caused by work-related noise exposure during 44 years of employment. Also claimant testified that he first noticed his hearing loss during his employment with Bethlehem, that he was exposed to loud noise throughout his career, but received the most exposure while working for Bethlehem, which did not supply hearing protection to employees until the 1980s when Bethlehem also began conducting annual hearing examinations. Thus there was sufficiently credible evidence that the hearing loss began at Bethlehem and Bethlehem had actual knowledge of the loss. As to the issue of evidence, the Court determined that, where there is evidence, such records necessarily constitute the best evidence – and are often the only evidence – of the employer's awareness of the injury. As the records were in Bethlehem's exclusive control, the Board did not err in directing their production, and properly drew a negative inference upon Bethlehem's failure to produce them and Arcelor's failure to comply with the statutory notice requirements did not preclude apportionment. Prevailing party represented by: Jared L. Garlipp of counsel to Williams & Williams (Buffalo) for Arcelor Mittal and others, respondents. Commissioners of Record on both cases under appeal: Lower, Bell, Finnegan WCB #003 7535 [26184-7737]

Connolly v Huberts
June 7, 2012 NYS Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that the death of claimant's husband was not causally related to his employment. Claimant argued that her husband’s work as an automobile mechanic from 1976 to resulted in decedent's exposure to an undetermined amount of asbestos dust. Decedent was diagnosed with lung cancer in 2000 and, following his death in 2004, claimant filed a claim for workers' comp death benefits, citing occupational exposure to asbestos as a causative factor. The physician testifying on behalf of the employer and its workers' compensation carriers opined that, based upon his review of decedent's medical records, there was no objective medical evidence that decedent was "occupationally exposed to significant inhalation of asbestos fibers." ,... "no evidence of any asbestos exposure on [decedent's X rays],”, i.e., no "pleural plaques, pleural thickening or diffuse interstitial fibrosis throughout [decedent's] lungs, . . ." As to the issue of causation, the carrier’s expert was of the view that decedent's longstanding history of smoking (two packs per day for 25 years), as well as the fact that decedent's father died from lung cancer, were "adequate to fully account for the development of [decedent's] lung cancer." Although the pulmonary pathologist who testified on behalf of claimant reached a contrary conclusion, the resolution of conflicting medical opinions, as well as the weight to be accorded thereto, lie within the exclusive province of the Board. Prevailing party represented by: Renee E. Heitger of counsel to Hamberger & Weiss, Buffalo for Interguard Insurance Group, respondent and Christina M. Hassler of counsel to Law Office of Laurie G. Ogden (Buffalo) for Travelers Indemnity, respondent. Commissioners of Record: Bargnesi, Higgins, Bell WCB #8060 3455 [26184-7736]

Rosario v AIG
June 7, 2012 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board’s ruling that the claimant voluntarily removed herself from the labor market. After the claimant successfully filed a claim for bilateral carpal tunnel syndrome, with a date of disablement of November 3, 1998 and had surgery in 2004, in 2006, the parties stipulated that claimant was permanently partially disabled, although the stipulation did not specify the basis of claimant's disability. IN 2009 the carrier submitted a request to determine if the claimant was seeking employment within her medical restrictions as "a WA-1 was not filled out by the claimant referable to whether she was retired or whether she was looking for work." A Board panel reversed the law, finding that claimant had failed to search for work within her medical restrictions. Under the particular facts and circumstances of this case, claimant was required to demonstrate her attachment to the labor market with evidence of a search for employment within her medical restrictions. The record here contains medical evidence indicating that claimant was capable of performing sedentary work. However, claimant admitted at the hearing that she did not search for any work from 1998 until June 2009 and had only recently applied for two sedentary jobs. Although there was evidence that could support a contrary result, inasmuch as substantial evidence exists to support the Board's determination that claimant voluntarily removed herself from the labor market, the Court declined to disturb it. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for AIG and another, respondents. Commissioners of Record: Ferrara, Foster, Libous WCB #0992 0055 26184-7735]

Stenson v NYS Dept of Transp
June 7, 2012 NYS Appellate Division, Third Department
§29: 3rd Party/MVA liens

AFFIRMED the Board’s ruling that claimant was entitled to reimbursement for certain legal expenses after the carrier consented to a third-party settlement. The Court noted that “The underlying facts are more fully set forth in our prior decision in this matter (84 AD3d 22 [2011]). After making all the appropriate calculations the carrier, holding a lien for $20,455.39, accepted $13,501 in satisfaction of that lien, reflecting a 34% reduction for the carrier's equitable contribution toward litigation costs. The carrier then ceased paying benefits for 13 months to offset the full amount of the net recovery; thereafter payments resumed at the rate of $350 per week. After the claimants sought to have the carrier pay for its share of litigation costs, a Board panel denied resulting in the Court returning it to the Board for a factual determination of the credit to which the carrier was entitled (84 AD3d at 27). The Board then recalculated, directing the carrier to reimburse the claimant $6,611.11 and to pay an additional $2,800 in deficiency compensation, prompting this appeal by the carrier. Essentially, the Court agreed that the current appeal is primarily an effort by the carrier to relitigate issues that were resolved against them on the prior appeal. The Board's determination that the carrier failed to plainly and [*3]unambiguously express its intent to be relieved from payment of its equitable share of litigation expenses relative to its offset right is supported by substantial evidence. Specifically, the carrier's letter and form consenting to the settlement make no reference to that subject. In affirming the Board, the Court added “it is well settled that a carrier's equitable share of litigation costs must be apportioned not only upon the benefit received ‘by the recovery of its lien but also [on] the value of . . . future compensation payments that, but for the employee's efforts, the carrier would have been obligated to make’ during the holiday period.Prevailing party represented by: Michael P. Daly (Manlius) for Kai Stenson, respondent and Christopher Ronk of counsel to NYS Attorney General for the WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #6050 5286 [26184-7734]

Motion for leave to appeal denied by Court of Appeals on October 25, 2012

Prather v Amerada Hess
May 31, 2012 NYS Appellate Division, Third Department
Other

REVERSED the Board’s ruling on the grounds that the Board did not follow its own rules. In the absence of any explanation as to why the underlying hearing was held before one law judge and the decision was rendered by another, the Board's decision cannot stand, as stated in WCL §20(1). Several hearings were held on the issue of attachment to the labor market, all by the same law judge, but the decision on the reattachment hearing was issued without explanation and four months later by another law judge, who concluded that claimant had reattached to the labor market and awarded additional benefits. The Court noted that the Board panel’s affirmance of the procedure referenced §20(1) but then affirmed the law judge decision anyway and without any explanation. Prevailing party represented by: Danielle E. Holley of counsel to Walsh & Hacker (Albany) for appellants. Commissioners of Record: Lower, Finnegan, Foster WCB #50510153 [26184-7733]

| — — MAY 2012 — — |

Bruyne v NYS Comm of Labor
May 24, 2012 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the decision of the NYS Unemployment Insurance Appeal Board which ruled, among other things, that claimant, a foreign national, was ineligible to receive unemployment insurance benefits because she was not available for employment, because she did not have a proper visa. Claimant, a Surinam national, originally possessed a valid United States employment card; however, when it expired in November 1999, she did not seek a renewal. In 2005, claimant married a United States citizen. Claimant began working for a fast food restaurant in 2007 and, in 2008, she applied to have her status changed with the United States Citizenship and Immigration Services (hereinafter USCIS) based on her marriage. Claimant's employment ended in May 2010, after which she filed an original claim for unemployment insurance benefits. Thereafter, claimant testified before an Administrative Law Judge (hereinafter ALJ) that her USCIS application to change her status remained pending. The ALJ ultimately found that claimant was ineligible to receive benefits because she was not authorized to work in the United States during the relevant time period and was thus unavailable for work. The ALJ also found that she was unable to file a valid original claim because her base period employment as an alien was not covered employment under Labor Law § 590. The Unemployment Insurance Appeal Board affirmed the ALJ's decision and this appeal ensued. We affirm. "In order to be considered available for work and, therefore, eligible to receive unemployment insurance benefits, a non-United States citizen must have valid authorization from the [USCIS] to work in the United States" (Matter of Cale [Commissioner of Labor], 46 AD3d 1065 , 1066 [2007]. [25179-7732]

♦In a similar case at the WCB, there was the June 6, 2008 decision from the Court of Appeals in the Matter of Ramroop v Flexo-Craft Print of which I was a panel member, a case in which the Court of Appeals affirmed the Appellate Court which held that “the Board quite properly found that because claimant was an undocumented alien, he was ineligible{**11 NY3d at 166} for employment in the United States and, thus, his loss of earning capacity was not solely attributable to his compensable injury" and that "Workers' Compensation Law § 17 [did] not compel a contrary result."

Kerker v Maple View Dairy
May 15, 2012 NYS Supreme Court
§11: Jurisdiction

DENIED request to dismiss death claim as the exclusive remedy under Workers' Compensation Law §11 does not apply here. Decedent died in a fire while sleeping in a trailer on employer’s farm. Contrary to employer’s contention that decedent was required to sleep on the premises as a condition of employment, all facts shored the contrary. The employment contract [1] executed in Spanish did not match the uncertified English translation supplied to the Court, [2] the contract noted it do not provide that decedent was required to live on the premises, but, instead, merely indicate that housing arrangements are contemplated, and [3] the name on the contract was not that of the decedent, any claims of false identity not withstanding. [25179-7731]

♦Without access to the Board's files, it is not possible to ascertain if this case ever came to the Board. There is no Memorandum of Decision on Lexis under the name of this employer.

Goonewardena v WCB
May 17, 2012 NYS Appellate Division, First Department
Employment: Terminating a WCB employee

AFFIRMED, in an CPLR Article 78 case, the Board’s right to terminate a provisional employee without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law. Evidence in the record regarding petitioner's unsatisfactory completion of his duties provide a rational basis for respondent's determination, particularly since petitioner received ample opportunity to improve. No substantial issue was raised by petitioner's allegations purporting to show bad faith such that no hearing was required and the petition was properly denied. [25179-7730]

♦This case is posted only because it involves a personnel/administrative decision by the Workers Compensation Board.

Angelo v Occidental Chem
May 17, 2012 NYS Appellate Division, Third Department
§16 Death Benefits

AFFIRMED the Board’s ruing that the maximum death benefits payable to the surviving spouse under WCL §16(5)(1) are those in effect at the time of death, not the date of the underlying accident. The previously-established underlying asbestos-related claim of John Angelo (hereinafter decedent)was given a disablement date of May 27, 1994. On October 12, 2007, decedent died due to what was later determined to be asbestos-related pleural disease. After claimant, decedent's widow, filed this claim for death benefits, a Law Judge established and a Board panel affirmed, an average weekly wage of $838.46 "per payroll in the underlying [occupational disease] case" and awarded benefits at the statutory maximum rate of $500 per week. The Fund posited that claimant was entitled to the maximum benefit rate in effect, not on the date of decedent's death and, at the lower statutory maximum rate applicable on the date of disablement in the underlying occupational disease claim. The Court stated that the Board correctly found that the unambiguous language of this statutory provision in §16(5)(1), "where the death occurs on or after [July 1, 2007],” encompasses all qualifying deaths occurring in the applicable time frame, regardless of the date of disablement. The decision ended with “Contrary to the Special Fund's argument, our decision in Matter of House v International Talc Co. (261 AD2d 687, 689 [1999]) does not compel a different result.Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Ellen O. Paprocki, Richard A. Bell WCB #003 1691 [25178-7729]

Pettit v Scipio VFD
May 17, 2012 NYS Appellate Division, Third Department
VFBL

AFFIRMED the Board decision that claimant's injuries occurred in the course of her duties as a volunteer firefighter and emergency medical technician (EMT) for the Scipio VFD. In October 2009, the District's EMTs were informed that the swine flu vaccine was going to be provided for them at a clinic the following week. Claimant was refused the vaccine at that clinic, but attended a different clinic in December 2009 to receive her vaccination. On her way home from that clinic, claimant was involved in a one-car accident that resulted in multiple injuries, subsequently filing a successful claim which determined that her claim fell within the provisions of the Volunteer Firefighters' Benefit Law (FVBL). Citing case law, "'[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board's expertise'", the Court agreed with the Board that participation in a "supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity" is an activity covered by VFBL §5(1)(p). Prevailing party represented by: Michael J. Welch of counsel to Nicholas, Perot, Smith, Welch & Smith (Liverpool) for Sharon Pettit and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Lower, Finnegan, Foster WCB #00 0128 [25178-7728]

Burris v Olcott
May 17, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR

AFFIRMED the Board’s ruling that denied claimant's request to reopen his workers' compensation claim. Although his claim for a 1996 injury was established in 2003, his request to amend his claim in 2004 was time-barred, denied per WCL §28, a decision he did not appeal. His appeal on this issue was denied in 2006 per §23 and again in 2010. In writing that "[T]he Board's determination not to reopen claimant's case is subject to judicial review only for an abuse of discretion,” the Court found that the claimant had a full opportunity to litigate his claim for a causally-related neck injury before a Law Judge in 2004, and he did not seek Board review of the Law Judge’s decision denying his claim. Accordingly, claimant's challenges to that determination were not properly before the Court. Also, the Court agreed with the Board that claimant's request for further action did not contain any new material evidence warranting a reconsideration. Prevailing party represented by: Jeffrey M. Fox of counsel to Walsh and Hacker (Albany) for Time Warner Satellite Services and another, respondents. Commissioners of Record: Lobban, Paprocki, Bell WCB #5961 4641 [25178-7727]

Francis v Jewelry Box
May 17, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR

AFFIRMED the Board’s decision to deny pro-se claimant's application to reopen his claim. After his case was closed in May 1993 when claimant settled his August 1987 injury claim with a lump-sum non-schedule adjustment, claimant made several applications attempting to reopen his claim, all rejected because he did not demonstrate a change in condition that was not contemplated at the time of the original settlement. Contending he now suffered from chronic major depression, posttraumatic stress disorder and chronic pain disorder stemming from the 1987 accident, the Board “noting that claimant previously waived his right to have his case established for psychiatric injury, ruled that the proof submitted was insufficient to support his request to reopen his claim. . . . While claimant is attempting to expand his claim to include a consequential psychiatric the transcript of the May 24, 1993 lump-sum hearing establishes that claimant, whose physician had recommended psychiatric counseling, unequivocally stated that he wished to settle his case at that time and was waiving any right to have his case additionally established for a consequential psychiatric injury. Under the circumstances, there is substantial evidence supporting the Board's conclusion that claimant did not sufficiently allege an unanticipated change in his medical condition warranting the reopening of his claim.” Prevailing party represented by: Shayne L. Dorr of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelry Box Corporation of America and another, respondents and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Bell WCB#0877 5710 [25178-7726]

Spaulding v Lowes
May 17, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBRs

AFFIRMED the Board’s rulings (1) which ruled that pro-se claimant had no further causally related disability, and (2) which denied pro-se claimant's request for reconsideration or full Board review. Fifteen months after a work related injury to her left foot, claimant filed a C-3 seeking to add her right foot to the established claim, an amendment denied by the Law Judge and Board panel with the Board subsequently denying reconsideration or full Board review (FBR). Although claimant separately appealed from both the Board's underlying decision and the denial of reconsideration or full Board review, she failed to timely perfect her appeal from the underlying decision. Consequently, the Court did not review that appeal. In supporting the denial of FBR, the Court found that the Board’s denial was neither capricious, arbitrary, nor an abuse of discretion as the claimant did not proffer any new evidence that was unavailable at the time of the hearings.Prevailing party represented by: John B. Paniccia of counsel to Stockton, Barker & Mead (Albany) for Lowe's and another, respondents. Commissioners of Record: Lower, Bell, Finnegan WCB# 005 9899. [25178-7725]

Southard v Corning Hotel
May 17, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s decision which discharged the Special Disability Fund (Fund) from liability under WCL §15(8)(d). In April 2004, claimant suffered a work-related injury to her back and left hip and was awarded workers' compensation benefits. The carrier unsuccessfully sought reimbursement from the Fund, asserting that claimant's preexisting arteriovenous malformation had contributed to her disability. While the carrier’s medical export opined that claimant’s preexisting condition “constituted a permanent disability that was materially and substantially greater than that caused solely by” the work-related injury. BUT "[t]he mere fact that the sum of the disabilities is materially greater than the subsequent disability alone is not sufficient to hold the . . . Fund liable" but, instead, the preexisting impairment "must increase the compensation liability above that which the employer would have incurred as a result of the subsequent injury alone. . . . In fact, the employer's expert stated that claimant's headaches, which she has suffered from throughout her life, did not increase her overall disability. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #7040 6570 [25178-7724]

The Insider The case that follows had almost identical indicia yet that Board panel ruled against the Special Fund and was reversed by the Appellate Court. One can only hope that there were two writers in the Administrative Review Division that drafted these Board panel decisions.

Weiner v Glenman Indus
May 17, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

REVERSED the Board by ruling that the carrier is not entitled to reimbursement from the Special Disability Fund (Fund). On November 15, 2006, claimant sustained work-related injuries and was later classified as having a permanent partial disability. The carrier's medical expert noted that claimant suffered from various preexisting physical impairments, including asthma, lyme disease, migraines and cervical disc herniation, prompting the carrier to to seek reimbursement from the Fund per WCL §15(8)(d). The Board concluded that "claimant suffered from a prior permanent condition of asthma, and as a result, the claimant's current disability was materially and substantially greater than that which could be ascribed to the compensable injury alone", later amending the decision adding certain additional facts and analysis, and denied the Fund's application for full Board review. Inasmuch as the record lacks proof "that claimant suffered from a preexisting permanent impairment that hindered her job potential, ... [or was] was under any restrictions at work because of the asthma or that it had presented any "hindrance to her employment", The Court found that the Board's determination was not supported by substantial evidence" and reversed it. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, appellant. Commissioners of Record: Bargnesi, Higgins, Bell WCB#5070 1647 [25178-7723]

Zhang v Tonys Marble
May 17, 2012 NYS Appellate Division, Third Department
§23: Late Appeal

AFFIRMEDthe Board’s rulings (1) that the application of the employer for review of a Law Judge's decision was untimely, and (2) which denied a request for reconsideration and/or full Board review (FBR). Forty six days after a Law Judge determined that claimant sustained a work-related injury and awarded benefits, the employer submitted an appeal from that decision. The Board deemed the appeal as untimely and also denied a subsequent application for FBR. Although the employer notified the Board of its intent to appeal by letter within the 30-day §23 time limit, the employer did not meet the requirements of §23 as the formal application f or review must be in writing, accompanied by a cover sheet form prescribed by the chair, specify the issues and grounds for such review, and include proof of service upon all parties in interest; this was not done until after the deadline. Hence the Board’s denial of review was neither arbitrary and capricious nor an abuse of discretion. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Bell, Finnegan WCB#0082 7791 [25178-7722]

Spinnato v GE Advanced Materials
May 10, 2012 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

REVERSED the Board, thus affirming the Law Judge, by finding that the additional injury was not new but consequential, thus passing liability on to the Special Fund for Reopened Cases. Although the claimant had no lost time from an established back injury in August 1995, he subsequently would frequently experience back pain due to sciatica, which would occasionally cause his right knee to give out. After he experienced a sharp pain in his right knee that caused it to buckle, and he caught himself with his left knee in August 2006, claimant filed a new claim. A Law Judge disallowed the new claim and amended claimant's 1995 claim for consequential injuries to his knees as a result of the 2006 incident, a decision reversed by a Board panel, resulting in this appeal by both the Fund and the claimant, although each for different objectives. The Court wrote that, “Whether or not a claimant's disability is consequentially related to a previously established injury is a factual question for the Board to resolve, but its determination must not rely on a speculative medical opinion.” They noted that the only medical opinion supporting the ‘new injury’ was by a doctor who was unaware that, since 1995, claimant had experienced frequent episodes where his knee would give out relative to his sciatica, and after being informed that claimant had received no treatment from 1998 forward, stated further that, “without looking at the documentation relative to these episodes, he would be unable to render a medical opinion.” The court summarized its reversal by writing, “. . . given the lack of reliable medical evidence, we cannot say the Board's decision is supported by substantial evidence.”Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB#5952 1219[25177-7721]

The Insider It is worth noting how the Board uses cases like these to enhance is alleged efficiency. Both the Fund and Claimant appealed the Law Judge decision on the sole issue that the injuries were consequential and not a new injury. The Board, for statistical purposes, writes that the decision was ‘modified’ yet the decision ‘reverses’ the only issue in the law judge decision on appeal. This use of the word ‘modify’ rather than ‘reverse’ is an example of how the Board ‘cooks the books’ in terms of it own record of Board panel decisions/reviews of Law Judge decisions. The actual number of Board panel decisions reversing Law Judges (whether or not the reversal is ultimately upheld) is probably closer to 15% than the 6% the Board reports.

Zamora v New York Neurologic
May 1, 2012 Court of Appeals
Voluntary Withdrawal

AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market, by REVERSING the Third Department’s December 3, 2010 decision, which found for the claimant and reversed the Board panel. After her case was established for 2003 work-related injuries, claimant returned to work until 2007 when she became too ill to continue to work; asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. She then sought other employment. But the Board panel (Ferrara, Henry, Paprocki), in reversing the Law Judge, unanimously found that “Between her work stoppage in December of 2007 and her testimony on August 5, 2008, the claimant only posted her resume on the internet. The jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition. The Appellate Court, in a 3-2 split decision, reversed today, ruled

. . . an inference arises that subsequent loss of wages was attributable to her disability, making it incumbent upon the employer "to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability". This inference arises regardless of whether the Board's finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work. While a claimant's failure to look for work may be relevant in challenging a claimant's continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference. Indeed, the employer must show "that the failure to seek employment was the sole cause of the subsequent reduction". Here, claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant's job search were the sole cause of her continued unemployment, substantial evidence does not support the Board's determination.

The dissent at the Appellate Court opined that the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Only after the non-retired claimant has met that burden does the inference arise that the subsequent loss of or reduction in wages, if any, was caused by the permanent partial disability. The Court of Appeals made its decision by determining that

“. . . a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations". Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that "once claimant's work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations". . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. ... There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”

This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board's choice simply because a contrary determination would have been reasonable.” Finding that the Board has reasonable evidence to make it decision, the Court of Appeals affirmed the find that the claimant had voluntarily withdrawn from the labor market. Prevailing party represented by: Michael F. Vecchione  of Vecchione, Vecchione & Connors, Garden City Park for New York for Neurologic and Paul Groenwegen 1of counsel to the NYS Attorney General for WCB [25176-7720] ?A lengthy COMMENTARY on this decision and its ramifications for the future of injured workers can be found by clicking here.

Schmidt v Falls Dodge
May 1, 2012 Court of Appeals
§15(6): overlapping SLU & PPD

REVERSED the ruling of both the November 25, 2009 decision of Appellate Court - 3rd Department and the Board both of whom required that the carrier pay both the maximum allowed weekly comp rate in addition to an SLU. As the result of three accidents, a Law Judge ordered the carrier to pay claimant a total of $400 per week, the maximum allowed. Subsequently, a Law Judge made an award for a hearing loss claim, permanent partial disability, entitling claimant to a schedule loss of use award per WCL §15(3). The Judge concluded that the schedule award was "currently payable in full," notwithstanding the fact that claimant had was still receiving $400 per week for his other claims. The Board found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist., in which the Appellate Division held that because a schedule award "is not allocable to any particular period," it "cannot be deemed to overlap with" a temporary total disability award. This Court essentially determined Miller is “incorrect and should not be followed". The Miller court erred in allowing a claimant to recover both at the same time, with the result that weekly payments, $800, exceeded the statutory cap. The Court of Appeals explained that §15(6) provides a cap for payments of compensation and that the schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded."A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005 -- a quadriplegic, for example -- can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and a hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly -- i.e., that in the long run no claimant will recover an average of more than $400 per week -- because no one can say when, if ever, a 'temporary' disability will end".

Justice Cipatrick, in her dissent, posited that

a "schedule loss of use award" for a permanent partial disability is not linked to a particular time period, but rather is compensation for future loss of earnings without regard to present ability to work. She wrote that the 2007 Amendment to WCL took into account the issue of payments. Because the Legislature is presumed to be aware of the decisions in Matter of Miller and Matter of Lansberry, and as it did not comment on or make any change to blunt the effects of these decisions, it must be assumed that it intended to incorporate the holdings -- that schedule awards do not overlap with temporary total disability awards -- into the existing law. That the Legislature did not intend to overturn the holdings in Matter of Miller and Matter of Lansberry is even more evident when considering the 2009 revision to Workers' Compensation Law. That revision was made in direct response to our holding in Matter of LaCroix v Syracuse Exec. Air Serv. Accordingly, I would permit the overlap of payments, although currently exceeding the statutory maximum, and affirm the order of the Appellate Division. The question of whether such overlap is permissible allowing for the "anomalous" situation identified by the majority is best left to the Legislature to determine.

The Court of Appeals finished its reversal by writing, “We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by §15(6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to §25(b): that section, as amended, now says that schedule loss of use awards ‘shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.’" Prevailing party represented by: John R. Gibbon for appellants. [25176-7719]

The Insider While this case does not have the same impact as Zamora in terms of claimants impacted upon, the 2009 Appellate Court decision was hailed as a major victory for injured workers. Whether or not the legislature will address this issue as specifically as inferred from the arguments by both the majority and the dissent at the Court of Appeals remains to be seen.

Forsyth v Staten Island DDSO
May 3, 2012, 2012 NYS Appellate Division, Third Department
§14(6): Concurrent Employment

AFFIRMED the Board’s substantively amended ruling which determined that claimant was concurrently employed and established his average weekly wage (AWW). After claimant’s case was established for an injury occurring, in the Winter - January 20, while a week-end employee of the Staten Island DDSO, his annual AWW was established by a Law Judge using earnings from concurrent seasonal employment as a lifeguard for the City of New York. The record demonstrates that claimant was employed on weekends by the employer year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978. Claimant worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury. IN effect, although the claimant was not receiving benefits from his concurrent employment at the time of his accident, his income from that employment was properly considered in setting his AWW. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #010 8704 [25176-7718]

Hahn v Brylin Hosp
May 3, 2012 NYS Appellate Division, Third Department
§ 14: Average Weekly Wage

AFFIRMED the Board’s ruling which established claimant's average weekly wage as a part-time worker. Although the carrier did not controvert the establishment of the claim for the part-time nurse, it objected to the Law Judge’s calculation of her average weekly wage (AWW) by using WCL §14(3), which the Court noted is applicable to part-time employees. This provision does not apply, however, where the claimant voluntarily limits his or her participation in the labor market. The carrier contended that claimant voluntarily limited her hours whereas Claimant explained that she was not seeking to limit her hours. And, her testimony “that she did not want to work full time and felt ‘fortunate’ to have a job that required her to work only three days a week did not disqualify her from the provisions of §14(3).” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Finnegan, Foster WCB #013 0308 [25176-7717]

 

| — — APRIL 2012 — — |

Kasic v Bethlehem Steel
April 25, 2012 NYS Appellate Division, Third Department
§28: time bar

REVERSED the Board’s ruling, and affirmed the Law Judge, that claimant's application for death benefits was time-barred by WCL §28. During his 22 years employment at Bethlehem Steel, decedent was exposed to Benzene and other chemicals. After he was diagnosed with acute myelogenous leukemia, he filed a workers comp claim alleging that his illness was caused by his "exposure to Benzene." The employer controverted his claim, asserting that decedent had not presented competent medical evidence establishing causal relationship. Three years after decedent’s death in 2006, the claimant’s spouse filed a claim for death benefits. The carrier argued that this second claim was untimely because, per §28, it was filed more than two years after decedent's death. A Law Judge disagreed and found for claimant, concluding that her claim was timely because it was filed within two years of her receiving a written medical opinion citing causal relationship. A Board panel reversed, disallowing the claim on the ground it was untimely as more than two years had passed after decedent's death. The carrier argued that, because of the decedent’s own claim contending causal relationship, his wife should have filed within two years of his death, as those contentions put claimant on notice at that time as to what allegedly caused decedent's death. In disagreeing with the employer and the Board, the Court wrote:

There is no doubt that, prior to and at the time of decedent's death, decedent and claimant suspected that he contracted leukemia as a result of conditions at his place of employment. However, it does not necessarily follow that simply because claimant harbored such suspicions, she knew or had reason to know what caused decedent to contract leukemia.

The Court noted that the carrier had always contended that there was no causal relationship and none had been presented prior to his death.

In fact, claimant only obtained such evidence when she received a letter dated September 9, 2008 from a physician indicating that the leukemia that caused decedent's death was a result of him being exposed to chemicals at the work place. Since claimant filed for death benefits within two years of the date of this letter, her claim was timely, and the Board's decision to the contrary was not supported by substantial evidence.

Prevailing party represented by: John A. Collins of counsel to Lipsitz, Green, Scime & Cambria (Buffalo) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #003 6004 [24175-7716]

 

Lue v Finkelstein & Partners
April 25, 2012 NYS Appellate Division, Third Department
Legal Malpractice

The key issue was the claim of legal malpractice brought about when the injured worker’s first attorney failed to preserve injured worker's Labor Law § 240 claim against K-Mart when, as an employee of O'Connell Electric, he fell from a scissor lift rented by United Rentals at a site owned by K-Mart Corporation. K-Mart was in the midst of chapter 11 bankruptcy, resulting in the claim initially being reduced to zero dollars by the Bankruptcy Court in 2004 and next dismissed by Supreme Court based upon the Bankruptcy Court's order; h did not pursue an appeal. After hiring new counsel and successfully suing United Rental, he brought this action asserting that he would have had a larger recovery if his §240 strict liability claim against K-Mart had been preserved by his former attorneys. The record did show that there were contractual agreements between K-Mart and O’Connell requiring indemnification insurance which O’Connell never acquired. Since there is no proof of any kind in the record showing the existence of such a policy, the Court ruled “that this record does not support the conclusion that the contractual indemnification claim was established as a matter of law as a way that injured worker could have reached the funds of Interstate Insurance Group.” On the other hand, the Court found “unpersuasive the original attorney’s assertion that injured worker's strict liability claim under Labor Law § 240 would not have had potential additional value in the underlying litigation. Further, injured worker submitted evidence which, when viewed most favorable to him, indicated that his injuries potentially had value beyond the amount for which he settled.” [24175-7715]

Dingman v Lake Luzerne
April 12, 2012 NYS Appellate Division, Third Department
Disability: Further Causally Related

REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers' compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer's request to suspend payments pending development of the record with regard to claimant's attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board's decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]

The Insider It was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: 'no reasoning'.

 

Fetter v Verizon
April 12, 2012 NYS Appellate Division, Third Department
Interlocutory Appeal

DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render "a reasoned oral or written decision upon the contested points" as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board's decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]

Zeppieri v Hofstra Univ
April 12, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the carrier is entitled to reimbursement from the Special Disability Fund per §15(8). Claimant, a truck driver for the employer for approximately 10 years, suffered an injury to his back in May 2005 and in 2008 was classified as having a permanent partial disability. Meanwhile, the carrier sought reimbursement from the Fund pursuant due to, among other things, preexisting back and heart problems, a request granted by the Board. Here, the carrier submitted the results, uncontroverted, of an IME who reviewed claimant's medical files from March 1996 — just prior to claimant's heart attack — through October, opining that claimant's preexisting back and cardiac conditions were permanent in nature and were a hindrance to employment. “Specifically, the report states that back problems such as those suffered by claimant limit the ability to lift, sit for long periods and get in awkward positions, hindering employment such as truck driving, construction and other laboring-type activities. Additionally, the report states unequivocally that claimant's current disability is materially and substantially greater as a result of his prior medical conditions than it would have been as the result of the May 2005 accident alone. Thus, despite testimony from claimant that he was not hindered in the performance of his job by his prior medical conditions, we find that substantial evidence supports the Board's decision.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O'Boyle & Weisman(Hauppauge) for Hofstra University and another, respondents. Commissioners of Record: Ferrara, Paprocki, Bell WCB #2050 4340 [24173-7711]

Stevens v Fisher Hotels
April 5, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Fund

AFFIRMED the Board’s ruling that the amended C-250 seeking §15(8) reimbursement was timely filed. In June 2008, after having submitted an RFA-2 to reopen a 2003 injury case for determination of continuing benefits, the carrier agreed to continue payments at the temporary partial disability rate, claimant was referred for vocational rehabilitation evaluation and the case was marked no further action. On September 11, 2009, the carrier filed a claim for reimbursement from the Special Disability Fund (form C-250), pursuant to Workers' Compensation Law § 15 (8), based upon an April 2009 report from the carrier's medical expert which acknowledged serious preexisting conditions that he was previously unaware of and concluded that the claimant's causally related disability would be materially and substantially greater due to these preexisting conditions. Thereafter, claimant was classified as having a permanent partial disability. After a Law Judge agreed with the Fund’s contention that the carrier's claim for reimbursement was untimely, a Board panel reversed. The Court agreed with the Board’s conclusion that “In July 2008, there was medical evidence that claimant had reached her maximum medical improvement, no further medical treatment was indicated and it was contemplated that claimant was going to return to work. Accordingly, we conclude that substantial evidence supports the Board's July 2008 factual determination that there was no further proceedings contemplated, and the case was truly closed at that time. Therefore, inasmuch as the carrier's C-250 form was filed after the reopening of the case and prior to the finding of permanency, the Board's finding that the form was timely filed will not be disturbed. Prevailing party represented by: Lauren E. Ryba of counsel to Law Office of Mary J. Mraz (Albany) for Fisher Hotels and another, respondents. Commissioners of Record: Lower, Finnegan, Foster WCB #3050 1404 [24172-7710]]

The Insider After a rather dismal record on this issue last year, it is nice to see the Board's position on timelessness upheld for the second time this year.

Nepomuceno v NYC
April 5, 2012 NYS Appellate Division, First Department
§11: Jurisdiction

REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital's motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. "[T]he availability of workmen's compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law," such that the matter must, in the first instance, be determined by the Workers' Compensation Board, thus staying the matter pending resolution by the Workers' Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]

Guideone Specialty Mut v NYSIF
April 3, 2012 NYS Appellate Division, Second Department
§11: Jurisdiction

REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court's lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time." Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]


| — — MARCH 2012 — — |


Bissell v Town of Amherst
March 27, 2012 NYS Court of Appeal
3160...§ 29: 3rd Party future liens «»3160...§ 29: 3rd Party/MVA liens

The Court of Appeals concluded that when, the future medical benefits that a compensation carrier has been relieved of paying due to a claimant's successful prosecution of a third-party action are "so speculative that it would be improper to estimate and assess litigation costs against [that] benefit to the carrier" the carrier need only pay its equitable share of attorneys' fees and costs incurred in the future by a claimant once the claimant incurs and pays each medical expense.

In this case, after the Board concluded that Bissell’s injuries resulted in a permanent total disability and awarded him $400 a month for the duration of his life, he commenced a third-party action against the employer per WCL §29(1), ultimately winning $4,259,536 in damages over 32.7 years to cover future medical expenses. The carrier asserted a lien against the judgment for $219,760, representing $154,880 in past workers' comp benefits and $64,880 for past medical expenses and acknowledged its Kelly obligation to contribute towards attorneys' fees relative to the present value of the lost wages compensation benefit; however, the carrier refused Bissell's request that it pay that share of attorneys' fees relative to the recovery of the future medical expenses awarded him, offering to pay its share of the cost when Bissell actually incurred each medical expense.

In Bissell’s action per §29(1) to extinguish the carrier's $219,760 lien against the third-party recovery and demand for $1,399,734 in "fresh money" representing the carrier's c share of the cost of recovery of the future medical expenses, Bissell contended that the amount of future medical expenses cannot be deemed speculative since the benefit to the farrier can be "quantified by actuarial or other reliable means". Therefore, the present value of the future medical expenses should be included as part of the Kelly calculation, entitling him to an immediate payment of the attorneys' fees expended in obtaining that portion of the award.

In disagreeing with Bissell’s position, the Court wrote:

We held in Burns that "if a claimant does not receive benefits for death, total disability or schedule loss of use, the carrier's future benefit cannot be quantified by actuarial or other means". Similarly, future medical expenses cannot reliably be calculated . . . because it is impossible to reliably predict the future medical care the claimant will need, when the expenses from such care will accrue and how much it will cost when it does. While some of those items may reasonably be ascertained by a jury in a third-party action, there is a distinction between a non-speculative future medical expenses award made by a jury and the benefit that the carrier receives under the WCL as a by-product of that award.

In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers' comp context, it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can be accurately calculated - i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to WCL is a determination that must be made by the Board, and such determination is not dependent upon the jury's verdict in the third-party action.


The Court then ruled that the lower court has option to design a program, (e.g., by court order or stipulation of the parties, to "fashion a means of apportioning litigation costs as they accrue”. Prevailing party represented by: Hal Friedman
[23171-7707]

The Insider Two weeks ago, I published an editorial from the Buffalo News which stated that the Carrier (NYSIF) refused to pay it fair share of the cost for the 3rd party settlement. Now that I have access to the Court’s decision and the underlying issue, it is obvious that the editors of the Buffalo News did not understand the legal issue.


Pelaez v Silverstone
March 22, 2012 NYS Appellate Division, Third Department
Employment: Who is
Procedure: Denial FBR «»3030...Employment: Who is or dual 7050...Procedure: Denial FBR

AFFIRMED the Board’s ruling that (1) claimant was an employee of Silverbrook Farm and (2) denied Silverbrook’s request for reconsideration and/or full Board review. The issue was whether the claimant was an employee of Silverstone Corporation or Silverbrook Farms, a d/b/a/ for Silverstone and whether or not Silverbrook and Silverstone were sufficiently related to be covered by Silverstone’s WC policy; while Silverstone had WC coverage, Silverbrook Farm did not. Ultimately the Board found that all the pay slips, financial records, and other documents relating to the claimant were all in the name of Silverbrook Farm, determined that (1) for WC purposes Silverstone and Silverbrook were separate entities, (2) Silverbrook Farms was the uninsured employer, and that there was an employee/employer relationship between Silverbrook Farm and the claimant. An interesting fact pointed by the Court is that Silverstone and Silverbrook had separate legal representation. As to the Board denial of Full Board Review, the Court found that Silverbrook had given no indication why the additional evidence submitted in its request for review was not available at the time of the hearing. Prevailing party represented by: Patricia M. Barry of counsel for State Insurance Fund and another respondents. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1648 [23170-7706]

The Insider It is interesting to note that the Full Board review decision was issued March 19, 2011, just over ONE YEAR after the underlying March 1, 2010 decision, thus taking the Board one year to complete a hearing, the same Board that imposes $1000 fines on carriers and claimant attorneys for taking too long to process their paper work. And perhaps this is the reason that the Board does not publish denials of FBR's: they would be (not them, but anyone else) embarrassed by such long delays.


Woods v NYS Thruway Auth
March 22, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR «»7050...Procedure: Denial FBR

AFFIRMED the Board’s ruling to deny claimant's application for reconsideration and/or full Board review on the basis that “our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to State Insurance Fund for New York State Thruway Authority and another, respondents. Commissioners of Record:Denials of request for Full Board Review are signed only by Vice-Chairman Libous - the Commissioners on the original panel are usually not informed of the request nor the denial. [23170-7705]

Motion for leave to appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the proceeding within the meaning of the Constitution. on October 25, 2012.


Inter-Community Mem Hosp v Hamilton
March 16, 2012 NYS Appellate Division, Fourth Department
Self-Insured Trusts «»3195...Self-Insured Trusts

The Court allowed a member of one of the many defunct Group Self-Insured Trusts (GSIT) to bring action against The Hamilton Wharton Group, Inc. (HWG) and Walter B. Taylor, HWG's sole owner and controlling principal(collectively, HWG and Taylor), as program administrator and managing director of the trust for negligence, gross negligence, breach of contract, and breach of fiduciary duty and against the individual trustees for breach of contract. The defendants defense of a possible ‘time bar’, since the plaintiff dropped out of the pans many years earlier, was dismissed. The Court ruled that “Although plaintiffs withdrew from active participation in the trust in 2001, they continued to have claims with the trust, and they continued to be jointly and severally liable for the deficits of the trust. Thus, the obligations of the parties as set forth in the operative trust documents continued beyond the period of plaintiffs' active membership. . . . The plaintiff’s causes of action may contemplate as a component of damages the pro rata deficit assessments against plaintiffs. Damages are an essential element of a breach of contract cause of action and, here, plaintiffs could not allege damages for the pro rata deficit assessments until those assessments were levied against them by the Workers' Compensation Board." Prevailing party represented by: Joseph E. Zdarsky of Counsel to Zdarsky, Sawicki & Agostinelli (Buffalo) for Inter-Community Mem Hosp., et al [23170-7704]

The Insider The repercussions of the Board's failure to supervise these trusts continues to reverberate throughout the legal system and its potential impact on every participant in the trust program .. except that is the Board's employees who were supposed to be in charge of the program.


Runge v National Baseball
March 15, 2012 NYS Appellate Division, Third Department
§123 Stale Claims «»3178...§123 Stale Claims

AFFIRMED the Board’s ruling that Workers' Compensation Law §123 does not bar further proceedings regarding the claim, for uncontroverted 1992 and 1997 injuries, which dealt with medical issues and bills, as it appears that no compensation was ever paid. At that time, the Board did not reach the merits of the claim and closed the case "without prejudice until [a] proper medical report is filed." Having paid medical bills without dispute through 2003, the employer then disputed certain medical bills, seeking reimbursement from the Special Fund for Reopened Cases (Fund) per WCL §25-a, it raised the issue that the claim was barred pursuant to Workers' Compensation Law § 123. Although a Law Judge withheld decision pending claimant's submission certain documents, no further action was taken until 2009, when the employer again raised §123 after claimant submitted medical evidence of his injury. The Law Judge found that §123 was inapplicable. The key issue stated by the Court, was "no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given . . . [an] opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident. . . .As a factual determination for the Board to make, whether such cases fall within the ambit of this statute depends on whether they were truly closed, that is, if further proceedings, such as the submission of additional medical evidence, were contemplated by the Board." Essentially, since the Law Judge, finding insufficient medical evidence in the record to make a determination, concluded that no further action was planned until such evidence was presented. Since the submission of additional medical evidence was contemplated in 1992 and 2005, the Court agreed with the Board that the case was not truly closed. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Bell WCB #0923 3492 [23169-7703]

♦ This is the first opinion issued by the Appellate Court on this issue in several years.


Rodriguez v City of New York
March 2, 2012 NYS Supreme Court, New York County

This following text is included on this page as the legal concept of 'timeliness', unlike the current Board's interpretation, does have a clearly defined meaning. In this case, the delay was occasioned by the plaintiff's failure to find the name of the employer until after the time limit for filing. The Court, quoting an earlier decision, wrote:

“[Llaw office failure, whether premised on an inadvertent clerical mishap or on an error in ascertaining the correct party to sue,” does not constitute a reasonable excuse for failing to file timely a notice of claim. (Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d 144 [ 1 st Dept 20001).


Canfora v Goldman Sachs
March 8, 2012 NYS Appellate Division, Third Department
§25-a: Reimbursement Period «»3130...§ 25-a: Reimbursement Period

REVERSED the Workers Compensation Board's ruling, which in turn reversed the Law Judge, that transferred retroactive liability to the Special Fund for Reopened Cases (Fund) per WCL §25-a. On May 29, 2008, the carrier requested that liability for a 2001 injury be transferred to the Fund per §25-a. Ultimately, the Board transferred liability to the Fund effective retroactive to May 30, 2006, which is two years prior to the date of the carrier's application, but within seven years of the date of injury. Here, it is uncontested that the carrier's application was filed more than seven years after the date of injury and three years from the last payment of compensation. The sole issue on appeal is the proper date for liability to be transferred to the Special Fund. The Board transferred liability retroactive to May 30, 2006, which was two years prior to the date the carrier filed its application. The Special Fund had argued that this is precluded by §25-a, inasmuch as May 30, 2006 falls within seven years of the date of the underlying injury. The Board rejected this argument, concluding that once the statutory time limits regarding the date of injury and last payment of compensation have been met, §25-a does not preclude a transfer of liability retroactive to a time period within seven years of the underlying injury.

The Insider The Board panel in its decision wrote:

The Fund argues that it can not be held responsible for awards prior to May 3, 2008 because awards cannot be directed against the Fund within seven years of the date of accident. However, the statute does not indicate this; rather, §26-a only permits the transfer of liability once the timeframe of seven years after the date of accident and three years after the last payment of compensation has been satisfied. As noted above, once liability has been transferred to the Fund per §25-a, awards can be retroactively directed against it beginning two years prior to the date of the carrier's application. In this matter, the carrier filed its application for §25-a relief on May 30, 2008. Accordingly, the Fund is liable for the claim beginning on May 30, 2006.]

In ruling against the Board, the Court pointed out, "It is well settled that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious" The Board has previously determined that, although the effective date of liability may be made retroactive up to two years from the date of the application to reopen, "said look-back period remains limited by the provisions of Workers' Compensation Law [§ ] 25-a, which requires that both the [seven]-year and [three]-year periods set forth therein have expired before [the] Special Fund[] may properly assume liability on the claim". Consequently, the Board determined that liability may not be transferred until "the first date, within the look-back period, where both the [seven]-year and [three]-year periods had expired." Inasmuch as the Board has not, in the instant matter, provided a rational explanation for departing from its own precedent, the decision must be reversed. Apparently the Law Judge who made the underlying decision and was reversed by the Board panel actually either knew the law or knew how to research such a relatively simple issue. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0013 9089 [23168-7702]


Wheeler v Bloomingdales
March 1, 2012 NYS Appellate Division, Third Department
§15(8) Reimbursement Special Funds «»3110...§ 15(8) Reimbursement Special Fund

AFFIRMED the Workers Compensation Board’s ruling that the workers' comp carrier was entitled to reimbursement from the Special Disability Fund (Fund) for deficiency compensation payments subject to certain restrictions. After claimant’s 1992 claim was established, the carrier filed a notice of claim for §15(8)(d) reimbursement from the Fund but liability of the Fund was not established at that time. With the consent of the carrier, claimant subsequently settled a personal injury action in which the employer had been impleaded as a third-party defendant. Liability of the Fund pursuant to §15(8)(d) was established approximately one year later. On May 11, 2001 [ten years to the day before the decision being appealed], the Board ruled that, when the carrier consented to the settlement, it had failed to reserve its right to receive credit for deficiency compensation payments against claimant's net proceeds and, thus, per §29(4) such credit was waived.

In 2009, the carrier alleged that the Fund was refusing to reimburse it despite the prior finding of the Fund's liability. The Workers Compensation Board found that, because the Fund's liability had not been determined at the time of the settlement, the carrier was not required to obtain the Fund's consent to it. As a result, the Board further found that, although the Fund was not liable for reimbursement to the carrier for payments made beyond the statutory retention period, which were encompassed by the carrier's lien waiver, the carrier was nonetheless entitled to reimbursement per §29(4) by the Fund for deficiency compensation payments.

The Court, in affirming and in rejecting the Funds reliance on the Matter of Bertone v La Cal Causle Corp. (26 NY2d 147, 149 [1970]) , wrote, “Because the issue of the Fund's liability had not been established at the time the settlement was reached, we find no basis upon which to disturb the Board's determination that the Fund's consent to the settlement was not necessary. Finally, when it consented to claimant's settlement, the carrier neglected to reserve its offset rights under §29(4). Thus, as the Board found, the carrier is not entitled to reimbursement from the Fund for payments that it made beyond the statutory retention period until the time when claimant's proceeds from the settlement would have been exhausted.“ Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City) for Bloomingdales and another, respondents. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0926 9826 [23167-7701]

The Insider  This is the first case dealing with two aspects of reimbursement: before §29(4) consent and for periods thereafter. What is of interest is that the claimant's appeal covered by another Workers Compensation Board panel's May 11, 2001 decision was filed late but accepted by the Board panel under the often misused "interests of justice" by which it waives legal errors without giving any explanation as to what "interests of justice' have been served, thereby perpetuating the generally accepted opinion that the Board acts capriciously and arbitrarily.

— — FEBRUARY 2012 — —


Eccles v Truck Lite
February 23, 2012 NYS Appellate Division, Third Department
Course of Employment: in and out of «»1100...Course of Employment: in and out of

AFFIRMED the Workers Compensation Board’s decision, which reversed the Law Judge, that the claimant’s fall from a chair was in the course of employment and not due to a diabetically-induced hypoglycemic episode precipitating the fall and injury. The Law judge originally disallowed the claim but the Board, editorializing in its reversal, determined that “ the findings of the Law Judge were based in part on mischaracterizations of the medical evidence that were perpetuated by the carrier's attorney during the deposition testimony of [claimant’s doctor].” it appears that, while the Law Judge based his decision on the results of a report of a blood test, the Board panel not only could not find the source of the crucial report but found that the few medical reports in the file supported a contrary conclusion: no hypoglycemic episode. The Court also denied the carrier’s claim of §114-a. [ED. NOTE:] §114-a was not referenced in the underlying Board panel decision.] Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #8071 2227 [22166-7700]


Cappellino v Baumann & Sons Bus
February 9, 2012 NYS Court of Appeals
Untimely Submissions/Defenses 7025...Untimely Submissions/Defenses

REVERSED the Appellate Court, 3rd Department’s affirmance of the Workers Compensation Board’s ruling that death was not casually related. The Court of Appeals determined that the Board improperly relied on medical reports which should have been precluded as evidence. The issue of the acceptability of the carrier’s medical report has been the subject of five Board Memorandum of Decisions in this case (11/06/2002, 12/12/2003, 07/30/2004, 09/12/2005, and 06/15/06), decisions which were based the Board’s interpretation of §137, NYCRR 300.2.3(1), §25(2)(b), and §25-3(c). Ultimately the Court of Appeals determined that the C-7 was filed late: the "Notice of Indexing Case" was mailed on January 11, 2002, and the carrier's form C-7 "Notice That Right To Compensation Is Controverted" was not filed until February 11, 2002. Essentially, the Court of Appeals determined that, since the C-7 was filed late, the carrier should have been denied the opportunity to present any medical evidence, evidence that was used by the Board in its determination that the death was not causally related. The Court remanded the case back to the Board for it to consider only the medical evidence submitted by the claimant, the decedent’s widow.. Prevailing party represented by: Joel M. Gluck (NYC) for appellant. Commissioners of Record: Bargnesi, Henry, Libous WCB #4020 0210 [22164-7699]

The Insider  The decisions from both the Court of Appeals and the Appellate Court are available through the following link. And on February 23, 2012, a COMMENTARY has been posted on this case based on a comments from one of this site's readers.

 

McLeod v Ground Handling
February 9, 2012 NYS Appellate Division, Third Department
Course of Employment: Location of MVA 1120...Course of Employment: Egress/Ingress

AFFIRMED the Workers Compensation Board’s ruling that claimant’s auto accident on the way to work did not arise out of and in the course of employment. Claimant was en route to her job at the Westchester Airport when she was injured in an automobile accident on Airport Access Road, a county road. Thereafter, a Board panel reversed a Law Judge who had ruled that claimant was traveling to work at the time of the accident and, therefore, her injuries arose out of and in the course of her employment. The Board panel determined that in order for a compensable accident and risk of employment to exist, "there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned" and that did not occur here. There was no indication that there was a special hazard at the point where the accident occurred. Although claimant used Airport Access Road to reach the employee parking lot, the record establishes that the road is a county road used by the general public to get to and from the airport and is not controlled by the employer. The Court agreed that “substantial evidence supports the Board's finding that claimant did not sustain an injury arising out of and in the course of her employment.” Prevailing party represented by: Rudolph Rosa Disant of counsel to the NY State Insurance Fund for Ground Handling and another, respondents. Commissioners of Record: Bargnesi, Higgins, Bell WCB #017 5904 [22164-7698]


Searchfield v Lowes Home Ctrs
February 9, 2012 NYS Appellate Division, Third Department
§ 28: time bar
Causal Relationship: PFME, et al 1210...§ 28: time bar; 1030...Causal Relationship: PFME, et al

AFFIRMED the Workers Compensation Board’s decision that (1) claimant's application for workers' compensation benefits was not time barred by §28 and (2) the additional site of injury was causally related. In October 2005, after injuring himself lifting a hot water heater, claimant was initially diagnosed with a "myofascial strain of legs [and] hips" and then after a second exam was diagnosed with hip/thigh sprain and sciatica. Later physician reports, however, focused on complaints of groin, lower back and leg pain. In 2006, a Law Judge established a work-related injury to claimant's lower back and found prima facie medical evidence of groin strain. After claimant reported worsening symptoms, an MRI of claimant's sacrum revealed signs of, among other things, "a possible paralabral or synovial cyst" and an orthopedic surgeon, in a January 2009 report, opined that claimant had, among other things, a right hip labral tear, also reporting claimant was originally misdiagnosed and had sustained injuries to his right hip. A WCLJ found that the claim was time-barred per §28 and, in any event, the condition was not causally related to the subject accident. Upon review, a Board panel reversed on both issues. The Board, in adding the hip as an original site of injury, determined that the claimant's ongoing pain was actually the result of a labral tear in the right hip, an injury which is often misdiagnosed as a low back injury. The testimony of the claimant's doctors confirmed that the claimant's injury was consistent with the mechanism of the work injury of lifting a water tank.Given that "the resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation" the Court found substantial evidence supporting the Board's ruling as to causation. Prevailing party represented by: Thomas N. Kaufmann of the Law Office of Thomas N. Kaufmann (Fayetteville) of counsel to Richard Searchfield, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #6051 0082 [ [22164-7697]

— — JANUARY 2012 — —


Capalbo v Stone & Webster
January 26, 2012 NYS Appellate Division, Third Department
Procedure: Denial FBR «»7050...Procedure: Denial FBR

AFFIRMED the Workers Compensation Board’s ruling which denied the request of the carrier for reconsideration or full Board review (FBR). In seeking to deny the claim, the carrier requested in a February 10, 2010 hearing that it be allowed to submit its medical report well beyond the initial 45-day time period noted in the Law Judge’s November 2009 decision. After the Law Judge agreed, the claimant appealed and the Board reversed the Law Judge, determining that it was too late to submit the medical report. The carrier unsuccessfully sought FBR. The Court determined that the Board discretion was supported as “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent and Joseph A. Romano of the Law Office of Joseph A. Romano (NYC) for Joseph Capalbo. Commissioners of Record: Lower, Williams, Finnegan WCB #017 0651 [21162-7696]

The Insider  Since October 2009, all 20 prior Appellate Court decisions on this issue have affirmed the Board, 8 favoring claimants, 11 for carriers and the 20th between two carriers.


Hroncich v Con Edison
January 19, 2012 NYS Appellate Division, Third Department
Apportionment: Death «»3070...Apportionment: Death
The Insider  October 10, 2012: The Court of Appeals has accepted this case for review.

AFFIRMED the Workers Compensation Board’s decision that decedent's death, causally related to his occupational illness, was not apportionable. In 1993, decedent was diagnosed with asbestosis and asbestos-related pleural disease ultimately found to have a permanent partial disability, and, as a result, developed thyroid cancer, which progressed into his lungs, dying in 2007. At the hearing on the death claim, a physician testified that decedent's death was attributable 20% to his work-related illness and 80% to thyroid cancer. [The Insider The physician was not identified in the Board’s decision as being the claimant’s or the carrier’s.] A Law Judge found that decedent's death was causally related to his work-related illness and that apportionment was not available. The employer argued that death benefits should be apportioned in the same manner as decedent's lifetime benefits were apportioned.

“However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds, explicitly holding that "apportionment is not available between work-related and non-work-related causes of death". We are not persuaded by the employer's arguments urging us to re-examine and overrule Webb. . . . Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Workers Compensation Board's determination that decedent's occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent and Jill B. Singer of counsel to the Special Funds. Commissioners of Record: Foster, Higgins, Bargnesi WCB #2070 8165 [21161-7695]

The Insider  The prior case is Webb v Copper Crouse Hinds with the link noted above.


Ramadhan v Morgans Hotel
January 19, 2012 NYS Appellate Division, Third Department
Schedule Loss of Use v PTD «»5050...Schedule Loss of Use issues

REVERSED the Workers Compensation Board's ruling that claimant was not entitled to a mandatory finding of permanent total disability (PTD) pursuant to WCL §15(1), based on the Board’s not infrequent failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. After claimant, suffering injury to his eyes, was awarded a 100% schedule loss of use of both eyes, he unsuccessfully argued that he was entitled to a mandatory finding of PTD per §15(1). The Board concluded that claimant did not qualify for PTD because, even though he qualified for a 100% schedule loss of use of both eyes (WCL §15[3][p]), he still had some vision. Claimant, relying on a 1993 Board decision, argued that he sustained the "loss of both eyes" as required for total disability. The Court agreed that the 1993 Board decision found a PTD on facts that appear to be substantially similar to those in this case and concluded that the Board was required to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. Prevailing party represented by: Michael K. Gruber of counsel to Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano (NYC) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0065 1079 [21161-7694]

The Insider  There have been no recent Appellate Court decisions on this issue.


Thomas v Warren County DPW
January 19, 2012 NYS Appellate Division, Third Department
§14(6): Concurrent Employment «»5170...§ 14(6): Concurrent Employment

AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to §14(6) reimbursement from the Special Disability Fund (Fund). Claimant who was injured in 2009 concurrently had a second job working for a janitorial service. The employer in whose employment claimant was injured was directed to pay benefits based upon claimant's average weekly wages from both employments per §14(6). Prior to the §14(6) being amended in 2007, the statute provided that an employer required to pay compensation to a concurrently employed worker based on the average weekly wages of all concurrent employments was eligible for reimbursement from the Fund for any additional benefits paid in excess of the benefits that would have been paid without concurrent employment. The 2007 amendment provided that the Fund would only be available for claims presented in accordance with the newly enacted §15(8)(h)(2)(A) which, as relevant here, bars an employer from filing a claim for reimbursement from the Fund for an injury with a date of accident or disablement on or after July 1, 2007. The employer contends that either (1) without the ability to be reimbursed by the Fund, it is no longer required to pay those additional benefits or (2) the Fund has not been closed to requests for reimbursements in that the amendment only places a time limit on applications for reimbursement. The Court noted that it has already considered and rejected these arguments, most recently in Hope v Warren County Bd Elec Prevailing party represented by: Michael S. Joseph of counsel to James Trauring & Associates (Schenectady) for William A. Thomas, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Williams, Higgins WCB #011 9384 [21161-7693]


Sangare v Edwards

January 19, 2012 NYS Appellate Division, First Department
§11: Election of Remedies «»3001...§ 11: Election of Remedies

AFFIRMED the Supreme Court, New York County denial of defendant (Dermer) motion to refer the matter to the New York State Workers Compensation Board to determine whether plaintiff was Dermer's special employee at the time of his injury. The Court’s denial was based on the late filing of the motion. Other than amending its defense ito include a workers' comp defense, asserting that as a special employee of Dermer, plaintiff's sole and exclusive remedy was workers' compensation, Dermer did not otherwise raise or pursue the workers' comp issue during the course of the litigation. The Appellate Court explained that “that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation.” [21161-7692]

Engoltz v Stewarts
January 12, 2012 NYS Appellate Division, Third Department
§114-a: Fraud «»5130...§114-a: Fraud

REVERSED the Workers Compensation Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant "knowingly [made] a false statement or representation as to a material fact" for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been "receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:

It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving "earnings," which was specifically defined as "cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free)."

Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]

The Insider  The Appellate Court has affirmed the Workers Compensation Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.


Johnson v Anheuser Busch
January 12, 2012 NYS Appellate Division, Third Department
Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250...Aggregate Trust Fund 7200...Decision Inadequately/Poorly Written

REVERSED the Workers Compensation Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant's future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be "an equitable application of the statute," the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board's discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7690]

The Insider  This is the first time since this site has been tracking cases that the Workers Compensation Board has been reversed on an ATF issue.


Blotko v Solomon Oliver
January 5, 2012 NYS Appellate Division, Third Department
Employment: Who is «»3030__Employment: Who is or dual

AFFIRMED the Workers Compensation Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC's about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board's decision that claimant was not SOMC's employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]

The Insider  With the exception of Choto v Consolidated Lumber (3/10/2011), The Workers Compensation Board has always been affirmed in its decisions on this issue.


Cary v Salem CSD
January 5, 2012 NYS Appellate Division, Third Department
Medical Exams: Frequency «»5200...Medical Exams: Appointments

REVERSED the Workers Compensation Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant's R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.

The Court recognized that “there is no presumption of continuing disability under the Workers' Compensation Law" and that a claimant's treating physician is required to submit progress reports reflecting a continuing disability "at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair" although "[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so" (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports to the Workers Compensation Board, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant's reduced earnings awards under these circumstances. Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]


Catapano v Jaw
January 5, 2012 NYS Appellate Division, Third Department
§ 29: 3rd Party/MVA liens «»3160...§ 29: 3rd Party/MVA liens

AFFIRMED the Workers Compensation Board’s decision which, found that the Special Disability Fund's (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund's consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund's consent to the settlement was required and the carrier's failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board's decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]

The Insider  In 2010 and 2011, the Workers Compensation Board has been affirmed only 3 times in its 9 decisions on §29 issues.


Eaton v Dellapenna Assoc
January 5, 2012 NYS Appellate Division, Third Department
Disability: Degree of «»5020...Disability: Degree of or R/E

AFFIRMED the Workers Compensation Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant's attachment to the labor market, after which a Law Judge modified claimant's prior classification and determined that he had a permanent total disability. The claimant's treating physician testified given, among other things, claimant's detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board's medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant's limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]

The Insider  The Workers Compensation Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).


Franco v Peckham Ind
January 5, 2012 NYS Appellate Division, Third Department
Disability: Further Causally Related «»5030...Disability: Further Causally Related/Comp

AFFIRMED the Workers Compensation Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board's determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant's present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]

The Insider  The Workers Compensation Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.


Hosey v Central NY DDSO
January 5, 2012 NYS Appellate Division, Third Department
§ 25-a: True Closing «»3140...§ 25-a: True Closing

AFFIRMED the Workers Compensation Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]


Jennings v Avanti Express
January 5, 2012 NYS Appellate Division, Third Department
Employment: Who is «»3030__Employment: Who is or dual

AFFIRMED the Workers Compensation Board’s ruling that claimant’s decedent husband was an employee. After decedent died in an MVA, the employer contended that the claimant, a courier, was an independent contractor, not an employee. In affirming the Board, the Court noted that a Law Judge, affirmed by a Board panel, found there was an employer-employee relationship based on a record which revealed that the employer determined the decedent's delivery schedule, provided decedent with a vehicle, an E-Z Pass for the payment of tolls, and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #3080 6361 [21158-7683]


Nassar v Masri Furniture
January 5, 2012 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al «»1030...Causal Relationship: PFME, et al

AFFIRMED the Workers Compensation Board’s ruling that claimant sustained a causally related injury. Claimant injured his back in April 2005 while working the employer, a furniture company, monitoring warehouse stock and making deliveries while he was lifting furniture. The pain increased such that two weeks later, while claimant was unloading furniture from more containers, the pain was such that he was unable to continue working, after which he did not return to work and filed a workers comp claim. The Board ruled that claimant sustained a causally related injury. Both claimant and a coworker testified that claimant was working for the employer lifting furniture when he hurt his back and neck and both further stated that the pain continued thereafter, requiring claimant to cease working. The Court agreed with the Board that (1) inconsistencies in the testimony or contrary testimony given by the employer presented a credibility issue for the Board to resolve and (2) uncontradicted medical evidence established a causal relationship between claimant’s injury and the disability to his back and neck.. Prevailing party represented by: Mark Du of counsel to Law Office of Joseph A. Romano (NYC) for Sam Nassar, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #0051 8317 [21158-7682]

The Insider  Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.


Nichols v Hale Creek ASACT
January 5, 2012 NYS Appellate Division, Third Department
Course of Employment: Special Events «»1110...Course of Employment: Special Events

AFFIRMED the Workers Compensation Board’s decision that claimant's injury, coaching company volleyball team, arose out of and in the course of his employment and awarded workers' compensation benefits. Claimant, the superintendent of a correctional facility, suffered an injury while coaching an employee volleyball team preparing to compete in the "Department of Correction Olympics", a claim unsuccessfully controverted by the carrier. Although WCL §10 states that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee's work-related duties, the record in this case supported the Board’s decision that this was not a purely voluntary participation, to wit, claimant was given specific direction to improve staff morale including encouraging employee participation and his coaching the volleyball team. Moreover, claimant's supervisor testified that she evaluated staff morale as part of her assessment of superintendents' leadership ability and that there is an expectation that superintendents be involved with as many facility-related events as possible. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #006 9793 [21158-7681]

The Insider  There were no Workers Compensation Board cases on this issue in 2009 to 2011.


Potter v VM Paolozzi
January 5, 2012 NYS Appellate Division, Third Department
Course of Employment: in and out of «»1100...Course of Employment: in and out of

AFFIRMED the Workers Compensation Board’s ruling that claimant's injury, on a dinner ‘run’ arose out of and in the course of his employment. Claimant, an automobile salesperson, was injured while driving his personal car while on an authorized break for which he had requested and received permission from his supervisor to briefly leave work to go to pick up and bring back two spaghetti dinners for the employer's finance manager. The finance manager had purchased the dinners as part of a fundraiser sponsored by a football team that claimant helped run on a voluntary basis. The Court wrote “Accidents that occur during an employee's short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment." Among other indicia, claimant's supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks, thus providing substantial evidence to support the Board's determination that claimant's short break did not constitute an interruption of employment. Prevailing party represented by: Timothy J. McMahon of counsel to McMahon, Kublick & Smith (Syracuse) for Richard Potter, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #014 8055 [21158-7680]

The Insider  Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2009, 2010, and 2011, splits between claimants and carriers.


Richman v NYS Unified Court
January 5, 2012 NYS Appellate Division, Third Department
§ 21: Unwitnessed Death/accident «»1001...§ 21: Unwitnessed Death/accident

AFFIRMED the Workers Compensation Board’s ruling that §21 presumption supported establishing the claim despite the paucity of evidence. [The Insider As you can read below, this case has a rather interesting history.] Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although she remains in a comatose state, a claim which was filed was controverted by the carrier, asserting that the ruptured aneurysm was not related to claimant's employment. A Law Judge and the Board panel found that the employer did not overcome the presumption of compensability set forth in WCL §21(1). While the employer's expert opined that claimant's ruptured aneurysm was unrelated to her employment, the Board agreed with the Law Judge that the expert's report and testimony were not credible – in large measure because he was evasive when questioned as to whether work-induced stress could raise a person's blood pressure high enough to cause an aneurysm to rupture. Contrary to the employer's argument, the Board, which "is the sole arbiter of witness credibility" was not required to wholly credit the expert's opinion on this point simply because it was the only expert proof presented. Prevailing party represented by: Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #0074 3840 [21158-7679]

?The only other case on this issue in 2011 was also affirmed but favored the carrier.

The Insider On April 23, 2008, a Law Judge denied the claim for lack for prima facie medical evidence (PFME). On November 24, 2008, the Workers Compensation Board denied an appeal as being late: Further, since the claimant's attorneys fail to indicate why a timely application could not have been filed in this matter, the Board Panel declines to exercise its discretionary authority under Workers' Compensation Law 123. But then, in a Full Board Review, the Board, without giving any reason other than its continuing jurisdiction under §123, reversed itself, accepted the appeal, and returned it to the Law Judge to again reconsider the PFME, at which point the Law Judge did just that, accepting the claim.

When I was at the Board, I was one of several commissioners who fought to keep a strict interpretation of 30 days for §23 appeals, unless there was some exceptional reason to excuse a late appeal, the exceptional reason to be clearly noted in the Board panel decision so as not to give the impression of arbitrariness or capriciousness by the Board. In this case, no reason was given for the Board’s total about face on this issue from which one can infer it was not any fact in this case that prompted the reconsideration, perhapos after a call by a local legislator.


Satalino v Dans Supreme
January 5, 2012 NYS Appellate Division, Third Department
Causal Relationship: PFME, et al «»1030...Causal Relationship: PFME, et al

AFFIRMED the Workers Compensation Board’s ruling that claimant did not suffer a causally related disability. Working at a grocery store for 35 years, claimant’s duties included unloading delivery trucks, stacking boxes and stocking store shelves. In January 2009, he had the first of two surgeries on his lumbar spine, never returning to work and filing a comp claim in November 2009, alleging that his condition was causally related to his employment. Although a Law Judge determined that he suffered an occupational disease to his lumbar spine, a Board panel reversed. Pursuant to the WCL §2[15], an occupational disease is "a disease resulting from the nature of employment and contracted therein". Further, to be entitled to benefits based upon an occupational disease, "the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment" Finally, medical opinions regarding a causal relationship "must signify 'a probability as to the underlying cause' of the claimant's injury which is supported by a rational basis". Although claimant’s physicians found disc herniation, arthritis, spondylolisthesis and stenosis, one testified that he could not find a relationship between claimant's condition and his employment and he could not opine whether the herniations were related to claimant's work or chronic disc degeneration, further testifying that claimant's arthritis, stenosis and spondylolisthesis could be related to claimant's age and not his job. Although his surgeon suggested possible causal relationship, he had initially indicated in an application for disability benefits that claimant's condition was unrelated to his employment. Noting that the Board is free to reject medical opinions where an expert does not testify convincingly in support of a causal relationship, The Court “conclude[d] that the Board did not abuse its discretion in determining that claimant failed to establish a recognizable link between his condition and his employment.” Prevailing party represented by: Elissa Landa of counsel to Fisher Brothers (NYC) for Dan's Supreme Supermarket and another, respondents Commissioners of Record: Bargnesi, Higgins, Bell WCB #019 2244 [21158-7678]

The Insider  Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.